European Union

Observer States

Report on the situation of local and regional democracy in Moldova - CG (9) 6 Part II

Rapporteurs: Claude CASAGRANDE (France) and Yavuz MILDON (Turkey)

---------------------------

EXPLANATORY MEMORANDUM

A. SUMMARY AND CONCLUSIONS OF THE REPORT

1. In CLRAE Recommendation 84 (2000), the Congress welcomed the progress made by the Moldovan authorities in strengthening local and regional self-government in Moldova. Their satisfaction was also based on the finding that the Moldovan authorities had followed the recommendations drawn up by the Chamber of Local Authorities and the Chamber of Regions of the CLRAE in recent years.

2. In particular, the Congress congratulated the Moldovan parliament on setting up regional self-governing administrative bodies, which it considered to be a very important contribution to resolving the problems of integrating the peripheral regions into the social, political and economic life of the country. The creation of new regions was welcomed as a first step in this direction.

3. This positive impression started to dissipate when, in summer 2001, the Moldovan government formed after the parliamentary elections of February 2001 confirmed its intention of passing and implementing a counter-reform of local and regional government, some aspects of which are, in the eyes of the Congress, incompatible with the spirit and the letter of the European Charter of Local Self-Government, which the Moldovan government ratified in 1997.

4. The aim of this reform was to replace the 10 regions (judets) set up in 1998 by 32 districts (raiony). By introducing substantial changes in the status and method of election of local and regional elected representatives and in the system for supervising them, it places those elected representatives under the authority, in practice, of central government. The reason the Moldovan authorities have given for these changes is the desire to introduce a “vertical line of power”.

5. The Rapporteurs made several attempts during their official visits to Chisinau to dissuade the Moldovan authorities from approving and implementing this reform. To this end, the Rapporteurs pointed out that:

a) the need to bring government closer to the citizens and reduce the number of public officials – arguments used by the Moldovan government to justify the reform – should not be incompatible with democratic principles and European standards in such matters.

b) the fact that there were shortcomings in the legislation in this field was no reason to sweep away the existing system, particularly since it had in the first place been established not without difficulty and with the political and financial support of the entire international community working in Moldova.

6. The Congress became even more concerned when it was informed that the reform bills had been drafted without prior consultation of the associations representing local and regional elected representatives and that in order to implement the reform, the Moldavian authorities intended to end the terms of office of the existing elected representatives prematurely by holding early elections.

The Bureau of the Congress pointed out to the Moldovan authorities that it was unacceptable in a democratic state that such a wide-ranging reform should be decided on without genuine, open and official consultation of the institutions concerned and implemented through early elections. The Rapporteurs also expressed their concern at the substantial cost to the Moldovan authorities of implementing the administrative changes required by the reform.

7. Unfortunately, in December 2001, the Moldovan parliament, ignoring all the CLRAE recommendations, passed the reform laws. Moreover, the Moldovan authorities failed to consult the Council of Europe on the laws in question before enacting them, despite promises to do so.

However, in February 2002, in the light of the CLRAE’s observations, the Constitutional Court of the Republic of Moldova held that the Parliament’s decision to hold early elections was unconstitutional. The Court did not, however, voice any criticism of the new territorial division of the country.

8. This did not prevent the Rapporteurs from pointing out that, at least as regards the underlying reasoning, the new administrative sub-division of the territory was at variance with the basic principles set out in the European Charter of Local Self-Government. This was borne out by the statements made by the first Deputy Prime Minister of Moldova concerning the desire to establish a "vertical line of power" (see above) and by a number of new legislative provisions establishing hierarchical relations between local authorities and central government. In this connection, it is important to note that in March 2002 the Constitutional Court of Moldova handed down a second decision in which it criticised these provisions on the grounds that they were incompatible with the Constitution and the European Charter of Local Self-Government.

9. With regard to the political expediency of the decision to reintroduce the districts (raiony), the Rapporteurs, while reaffirming that the Moldovan authorities were totally free to do as they saw fit in this area, pointed out that the decision to reintroduce the districts (raiony) was probably based on a poor assessment of the underlying problems.

Indeed, the main reason given by the Moldovan authorities for reintroducing the districts was that the citizens had asked that public services be brought closer to where they lived. The Rapporteurs are convinced that this objective could have been attained simply by decentralising services by making use of existing structures in the former districts. In deciding to replace the 10 existing regions by 32 districts, the Moldovan authorities have, on the contrary, de jure and de facto, increased the number of decision-making bodies and, consequently, the amount of bureaucracy involved.

10. From the practical standpoint and with regard to the near future, it is a positive sign that the above-mentioned decisions of the Constitutional Court do not permit the holding of early elections at local authority level and oblige the Moldovan authorities to respect the terms of office of the representatives of the judets, which do not expire until 2003.

11. In view of the Court’s decisions, the Prime Minister of the Republic of Moldova told the Rapporteurs that the terms of office of existing local and regional elected representatives would be respected. The Rapporteurs pointed out that any preliminary steps to establish the district administrative authorities must not undermine the autonomy of the existing local and regional authorities.

They also suggested that, in future, these districts might be treated purely as "administratively decentralised" offshoots of the state, which would make it possible to keep the regions (judets) as autonomous, "politically decentralised" authorities.

12. In this context, the Prime Minister promised the Congress Rapporteurs that, in future, the Government would submit all prospective new legislation on local public administration and territorial organisation drafted by the Parliament to the Council of Europe for an opinion.

13. Moreover, in the light of Article 4.6 of the Charter, the Rapporteurs stressed that it was very important that the associations representing local and regional authorities in Moldova should be consulted in future on any reform (or issue) directly affecting them. Such consultation should take the form of an institutional dialogue based on regular meetings and exchanges of information and official documents.

14. In view of the above, it was proposed that the Congress organise a meeting of all the parties concerned in Chisinau in the next few months to facilitate the establishment of a working environment conducive to dialogue with the above-mentioned representatives and foster the inception of such co-operation, in a climate of trust.

15. With regard to the autonomous region of Gagauzia, the Rapporteurs took note of the proposals for constitutional reform concerning the status of Gagauzia made by the relevant government committee. The Chair of this committee has asked the President of the Congress for an opinion on these proposals.

Since the Venice Commission was already preparing an opinion on the proposals, the Rapporteurs forwarded their comments to the Commission, so that it could take them into account when adopting its opinion. The Venice Commission's opinion, taking into account the CLRAE’s comments, was finally adopted at the meeting on 8 and 9 March 2002.

16. With regard to the conflict caused by the holding of a referendum in Gagauzia with the aim of removing the Governor of the region (Bashkan) from office, following a fact-finding visit to Gagauzia, the Rapporteurs concluded that:

a) no official decision to hold a referendum had been taken by the People's Assembly of Gagauzia in accordance with the relevant legal provisions;

b) no decision on the holding of a referendum had been published in the Official Gazette of the People's Assembly, in accordance with the relevant legal provisions;

c) the time-limits laid down by law for organising a referendum had not been observed;

d) the charges against the Bashkan concerning his management record and responsibilities should be clarified before a competent court in accordance with the legislation in force, or before the People's Assembly in accordance with its procedures and rules. It was therefore surprising that the highest Moldovan authorities had called on the population of Gagauzia to participate in the referendum aimed at removing the Bashkan from office, when it had no legal basis.

e) it was to be deplored that the attempt to organise the referendum had given rise to violence.

17. Moreover, with regard to the examination of the credentials of national delegations to the CLRAE, the Rapporteurs believe that, in future, particular attention should be paid to the renewal of the delegation of the Republic of Moldova.

In this context, they consider it important to make sure that the Moldovan delegation systematically comprises local and regional representatives elected at proper elections, in compliance with the rules set out in the Charter and the CLRAE Rules of Procedure.

18. For the same reasons, it is also important to ensure that, each time the delegation of the Republic of Moldova is renewed, the associations representing the country’s local and regional authorities are officially consulted by the competent government authorities, as required under Article 3 paragraph 1 of the CLRAE Charter.

19. In view of the above-mentioned points and the facts described in the remainder of the report, the Rapporteurs propose that the Congress adopt a recommendation and a resolution on local and regional democracy in Moldova.

20. It is also suggested that, once these texts have been adopted, they should be forwarded to the Moldovan presidential, parliamentary and governmental authorities, together with this report, and to the Committee of Ministers and the Parliamentary Assembly of the Council of Europe for information. A copy of these documents could also be sent to the relevant authorities of the European Commission, the OSCE, the IMF, the World Bank and the UNDP.

B. REPORT

I. INTRODUCTION

1. Latest developments in the political and socio-economic situation in the Republic of Moldova

1. In the February 2001 parliamentary elections, the Communist Party of Moldova (CPM) secured an absolute majority in Parliament (71 seats out of 101). Parliament subsequently elected Mr Vladimir Voronin, leader of the CPM, President of the Republic. The government formed as a result of these elections corresponds to the new political direction of the country.

2. The parliamentary opposition is now represented by the Braghis Alliance (led by Mr Dumitru Braghis, the former Prime Minister), which has 19 seats, and the Christian Democrat People’s Party (CDPP), led by Mr Iurie Rosca, which has 11 seats.

3. This major political change has had an important impact on the political course now being taken by Moldova, particularly with regard to international relations, economic choices, the division of executive powers at local and regional level, language and education issues and supervision of judicial bodies and the media. Despite claims that they want Moldova to become a part of Europe, the Moldovan authorities have not concealed the fact that they give priority to their relations with Russia.

4. These changes have caused a large amount of social unrest, leading to almost permanent demonstrations against the government’s decisions. The strongest protests have been against the government’s decisions concerning the compulsory teaching of Russian in primary schools and the replacement of the expression “the history of Romanians” by “the history of Moldova” in school textbooks. The proposals made by a number of CPM members of parliament to the effect that Russian should be introduced as the second official language of Moldova has certainly not helped to calm matters down.

5. The conflicts have been aggravated by the Moldovan authorities’ decision to suspend the CDPP (a decision which was subsequently revoked as a result of the pressure exerted by the international community) and by the Prosecutor General of Moldova’s repeated requests to Parliament to lift the parliamentary immunity of the representatives of the opposition involved in the social unrest and to prosecute them in the criminal courts for their participation in the organisation of street demonstrations. This was the context in which one of the main representatives of the CDPP was kidnapped.

6. These conflicts have gone hand in hand with a rapidly-spiralling economic crisis. Foreign investors, concerned at the extremely difficult social and political climate, are increasingly reluctant to invest money in Moldova. International financial institutions have strongly criticised the decisions taken by the Moldovan authorities with regard to international energy contracts and are threatening to leave the country to its fate. The average per capita wage is still no more than 30 euros a month and the Moldovan authorities are obliged to earmark 75% of their budgetary resources to repay foreign debts.

7. In the field of public administration and local and regional self-government, several of the Moldovan authorities’ decisions signify a sudden change of course.

These decisions, the process whereby they were adopted and the measures proposed by the Congress representatives for restricting the negative impact of the decisions on the local and regional authorities and the functioning of local and regional democracy in Moldova are set out in this report.

The report also endeavours to make constructive proposals for the future to encourage the Moldovan authorities to implement the reforms they have recently adopted in compliance with the democratic principles set out in the European Charter of Local Self-Government. A summary of these proposals can be found in the conclusions to this report. They are also set out in the recommendation and resolution on local and regional democracy in Moldova which the Congress will be asked to adopt at its 9th Plenary Session (Strasbourg, 4-6 June 2002) on the basis of this report.

2. The origins of the report and the drafting procedure

8. Following the Republic of Moldova’s accession to the Council of Europe in 1995 and its ratification of the European Charter of Local Self-Government in 1997, the Congress decided to prepare a monitoring report on the situation of local and regional democracy in Moldova to ascertain whether the authorities were honouring their commitments in this field.

9. A first report drawn up by Mr George Lycourgos (Cyprus) and Mr Xavier Muller (France) was examined by the Congress in 1998. On this basis, the Congress adopted Recommendation 38 and Resolution 59 and forwarded them to the Moldavian authorities1.

10. Given the changing situation of local and regional democracy in Moldova, the Congress decided, in Resolution 59, to prepare a second report. As a wide-ranging process of regionalisation was taking place in Moldova, it was also decided that this report should focus on aspects concerning regional self-government.

11. Consequently, on the occasion of its 7th Session in 2000, the Chamber of Regions of the CLRAE examined a second report on regional democracy in Moldova by Mr Nicolae Radu (Romania). On this basis, the Congress adopted Recommendation 84 and Resolution 103. These texts were also sent to the Moldovan authorities2.

12. It should be noted that in Recommendation 84 the Congress warmly welcomed the fact that, in November 1998, the Moldovan parliament had been able to pass a law on the administrative organisation of the country enabling ten new regions (judets) to be established.

13. In this rather positive context, the Congress pointed out that the setting up of self-governing bodies on a regional basis constituted a very important contribution to resolving the problems of integrating the peripheral regions into the social, political and economic life of the country. The creation of new regions was to be welcomed as a first step in this direction.

14. The Congress also pointed out that the regionalisation process could create the necessary foundation for the economic development of the entire country, which continues to be one of the Moldovan authorities' priorities.

15. Further comments in Recommendation 84 concern the situation in the autonomous region of Gagauzia. The Congress found that the implementation of legislation on local government and the organisation of local and regional authorities posed particular problems with regard to Gagauzia and its special status.

16. The Congress therefore concluded that it was necessary for the Moldovan parliament to confirm the special autonomy of Gagauzia and specify once and for all the institutional nature of this autonomy and the powers of the elected bodies in Gagauzia under the Moldovan legal system.

17. In Resolution 103 the Congress instructed the Institutional Committee of the Chamber of Local Authorities to prepare a third monitoring report on Moldova focusing on local democracy.

18. Following the adoption of these official texts, in accordance with the monitoring reports procedure, the Moldovan governmental authorities were invited to attend the CLRAE mini-sessions to describe the measures they had taken or intended to take to implement the Congress recommendations.

Most of these invitations remained unanswered. In 2000 and up to November 2001 the Moldovan authorities did not send any representatives to the CLRAE mini-sessions. Initially the Congress leaders thought that Moldova’s failure to reply was the consequence of political changes following the parliamentary elections held in February 2001.

19. Nevertheless, in June 2001 the Congress, alarmed by information on the new Moldovan authorities’ intentions with regard to local and regional democracy, confirmed its decision to prepare a third monitoring report on Moldova. In the light of the above-mentioned information, it decided that this report should concern both local and regional democracy. The Institutional Committee of the Congress was entrusted with the drafting of the report.

20. Mr Claude Casagrande (France, L) and Mr Yavuz Mildon (Turkey, R) were appointed Rapporteurs. They were authorised to make a number of official visits to Moldova to prepare the report. They were assisted in their task by Professor John Loughlin (United Kingdom), member of the Group of Independent Experts on the European Charter of Local Self-Government, Mr Dan Medrea (Romania), advisor, Mr Riccardo Priore, Head of the Secretariat of the Institutional Committee, and Mr Günter Mudrich, Secretary of the Chamber of Regions, Council of Europe Secretariat.

During their visits to Chisinau and Gagauzia the Rapporteurs were also assisted by Ms Lilia Snegureac, Director of the Council of Europe Information Office in Moldova, and Mr Igor Munteanu, Moldovan member of the above-mentioned Group of Experts.

21. The Rapporteurs wish to thank these people for their readiness to help as and when required during the various visits and for their co-operation in the preparation of the various working documents. They would also like to thank Mr Alexandru Codreanu, who is in charge of Council of Europe activities at the Moldovan Ministry of Foreign Affairs, for the help he provided in organising the visits.

22. The appendices to this report include a legal opinion on the reform laws passed by the Moldovan parliament in December 2001 on territorial organisation and local public administration. This opinion, which was drawn up by Professor John Loughlin from March to April 2002 under the Rapporteurs’ direction, was discussed with the Moldovan authorities during the Rapporteurs’ most recent visit to Chisinau (4 April 2002). The Rapporteurs drew up the present report following this visit, in the light of the Moldovan authorities’ comments.

23. On the basis of these documents they also prepared a preliminary draft recommendation and a preliminary draft resolution on the situation of local and regional democracy in Moldova. These texts were submitted to the Institutional Committee for approval at its 8th meeting (Strasbourg, 16 April 2002).

24. Subsequently, in the light of the report, the Congress was invited, at its 9th Plenary Session, to adopt the recommendation and resolution with a view to forwarding them to the parliamentary, governmental and presidential authorities of the Republic of Moldova. Copies of these documents will also be sent to the Committee of Ministers and the Parliamentary Assembly of the Council of Europe.

II. THE COUNTER-REFORM PROCESS WITH REGARD TO TERRITORIAL ORGANISATION AND PUBLIC ADMINISTRATION APPROVED BY THE MOLDOVAN AUTHORITIES IN DECEMBER 2001

1. The first official visit by the Rapporteurs to Chisinau, following the requests for assistance from the associations of local and regional authorities

25. The Institutional Committee of the Congress, whose attention had been drawn in October 2001 by the associations representing local and regional authorities in Moldova to draft legislation reforming the territorial organisation of Moldova to the detriment of the autonomy of local and regional elected representatives3, instructed the Rapporteurs to travel to Chisinau to determine the facts.

26. During this visit, which took place on 29 and 30 October 20014, the Rapporteurs – who were accompanied by Professor John Loughlin, Mr Dan Medrea and Mr Riccardo Priore – were able to verify the claims made by the above-mentioned associations. In view of the gravity of the situation, the Rapporteurs drew the Bureau’s attention, on their return, to the following:

a) Further to a proposal by the parliamentary committee responsible for public administration, the Moldovan parliament had discussed draft legislation designed to abolish the 10 regions (judets) set up between 1999 and 20005 and replace them by 32 districts (raiony) that would be placed under the supervision of central government.

b) At the request of the CLRAE Rapporteurs, Mr Iovv, Chair of the parliamentary committee in question, undertook to consult the CLRAE officially on all draft legislation concerning the territorial organisation of Moldova and/or its system of local and regional government.

c) Instead of being consulted, the Congress Secretariat was informed in early December 2001 that the Moldovan government had approved the draft legislation prepared by the above-mentioned committee. This draft legislation had also already received the Parliament’s preliminary approval. Despite promises made by the Moldovan authorities, the local and regional elected representatives concerned were apparently not officially consulted either. The Secretariat was also informed that, following this reform, all mayors would be removed from office and new mayors elected by the municipal assemblies. According to the information gathered, Parliament was to vote on all changes before the end of 2001.

d) During summer 2001, the Moldovan parliament amended the law on local public administration, thus reducing the financial powers of local and regional authorities. The transfer to the prefect of any decision-making powers with regard to these authorities’ expenditure has, de jure and de facto, already deprived the local and regional authorities of any degree of autonomy.

27. The fears of the associations of local and regional authorities with regard to the holding of early local elections were well-founded. During the first visit, it transpired that several possible dates were being discussed by central government with the aim of securing the election of new mayors with a more “positive” attitude to the reform.

28. In view of the foregoing, the Rapporteurs took the opportunity, during their visit, to inform the Moldovan authorities that they must respect the principles to which they had committed themselves under the European Charter of Local Self-Government. They also drew the authorities’ attention to the importance of implementing the Congress recommendations concerning local and regional democracy.

29. In particular, the Rapporteurs pointed out that the return to former districts would, in the Congress’s opinion, constitute:

a) an institutional change contrary to the principles promoted by the Congress with regard to regional democracy, as set out in CLRAE Recommendations 38 (1998) and 84 (2000);

b) an opportunity to increase control over the mayors and thus reduce the political, administrative and financial autonomy of the local authorities concerned6.

30. At the end of their first official visit to Moldova, the Rapporteurs stressed the various aspects of the situation that might lead to grave violations of the European Charter of Local Self-Government, which the Republic of Moldova had recently signed and ratified.

In endeavouring to convince the Moldovan authorities that they should not enact legislation that was contrary to the spirit and letter of the Charter, the Rapporteurs also pointed out that:

a) the need to bring government closer to the citizens and reduce the number of public officials – arguments used by the Moldovan government to justify the reform – should not be incompatible with democratic principles and European standards in such matters;

b) the fact that there were shortcomings in current legislation in this field was no reason to sweep away the current system, particularly since it had in the first place been established not without difficulty and with the political and financial support of the entire international community working in Moldova;

c) it was unacceptable that such a wide-ranging reform should be decided without genuine, open and official consultation of the parties concerned and implemented by early elections.

31. As the Rapporteurs did not receive any further information on the proposed territorial reform following their visit and as they were concerned about parliamentary decisions that appeared to be incompatible with the above-mentioned principles and recommendations, they decided to draw the situation to the attention of the Bureau of the Congress so that urgent measures could be taken.

32. On 12 December 2001, the Bureau of the Congress approved the Rapporteurs’ initial conclusions (see document CG/Bur (8) 95) and authorised them to return to Chisinau to take a close look at the decisions taken by the Moldovan authorities.

2. The Rapporteurs’ second official visit to Chisinau following the final enactment and promulgation of the reform laws

33. The second official visit was to Chisinau and Comrat from 28 to 30 January 20027 and the Rapporteurs were accompanied by the same representatives as mentioned in paragraph 26 above.

This visit gave the Rapporteurs the opportunity to take a close look at the final enactment (by the Moldovan parliament on 24 January 2002) of Law 764-XV of 27 December 2001 on the Territorial Organisation of Moldova (which replaces the previous law of 12 November 1998 of the same name) and Law 781-XV of 28 December 2001 amending Law 186 of 6 November 1998 on Local Public Administration.

34. In passing these laws the Moldovan parliament ignored the Congress recommendations. The laws:

a) were subsequently promulgated by the President of the Republic on 25 January 2002, following the amendments made by the Parliament on 24 January 2002 to take account of the President’s observations;

b) are now published in Volume 16 of the Official Gazette of the Republic of Moldova, dated 29 January 2002.

35. The Rapporteurs informed the Moldovan authorities (President of the Republic, Speaker of the Parliament and Prime Minister) that, as far as the enactment procedure was concerned, the new laws were contrary to a number of provisions set out in the European Charter of Local Self-Government (which Moldova had ratified in October 1997).

36. In this respect it was noted that, contrary to the rules set out in Article 4 paragraph 6 of the Charter, the central authorities had not taken any official steps to consult or inform the representatives of local and regional authorities in the country about the draft legislative reform. Moreover, the Rapporteurs were unable to ascertain whether Article 5 of the Charter had been properly implemented8.

The Rapporteurs pointed out that it was unacceptable in a democratic state that such a wide-ranging reform should be decided on without genuine, open and official consultation of the institutions concerned.

37. Moreover, the Rapporteurs expressed their regret that the Congress had not been consulted on the laws being prepared, despite the promises made by Mr Iovv, Chair of the relevant parliamentary committee. They took note of the apologies from the Speaker of the Moldovan Parliament. While they were in Chisinau they were able to consult the laws which had already been enacted, promulgated and published.

38. Although the Rapporteurs were unable to examine the laws in detail during their visit, they nevertheless reiterated their fears with regard to:

a) the Moldovan authorities’ assertions as regards the concept of a "vertical line of power" on which the laws in question are based; in this respect, the Rapporteurs reminded the Moldovan authorities that this was contrary to the spirit of the European Charter of Local Self-Government;

b) the negative consequences (in socio-economic and democratic terms) that this ill-considered repeal of the 1998 reform, which was based on the recommendations made by the Council of Europe and other international organisations might have;

c) the new administrative subdivision of Moldova, which replaces the 10 regions (judets), established under the 1998 reform, by 32 districts (raiony);

d) the ill-considered increase in the number of municipalities;

e) the fact that decentralised government and local government responsibilities rested with the same person (the district president);

f) the conditions under which the Parliament reserves the right to use its authority to revoke the powers of the municipal authorities;

g) the substantial cost to the Moldovan authorities of implementing the ensuing administrative changes (approximately 4 million USD according to the Speaker of Parliament).

39. The Rapporteurs asked Professor John Loughlin to draw up a detailed legal analysis of the conformity of the laws in question with the European Charter of Local Self-Government (see below).

40. During their second visit the Rapporteurs also strongly criticised the Moldovan authorities’ intention (of which they were officially informed by the President of the Republic, the Speaker of Parliament and the Prime Minister) of holding early local elections before the statutory expiry (in 2003) of the terms of office of the existing local and regional elected representatives in order to implement the newly enacted laws rapidly.

41. The Rapporteurs pointed out to the Moldovan authorities that the holding of these elections (which, according to the President of the Republic, would take place on 7 April 2002)9 could constitute a violation of democratic principles and of Article 7 paragraph 1 of the European Charter of Local Self-Government10.

42. The fact that the Constitutional Court of Moldova, taking account of the observations made by the President of the Congress on behalf of the CLRAE Bureau, subsequently set aside the decision to hold early elections is a positive sign (see below).

43. It should be pointed out that, during their second visit, the Rapporteurs on Moldova representing the Parliamentary Assembly of the Council of Europe, the Ambassadors of two EU member states (France and Germany), the Head of the OSCE mission in Chisinau and other representatives of international organisations working in Moldova told the Rapporteurs that they intended to take account of the CLRAE’S conclusions (particularly those concerning the conformity of the new laws on territorial organisation and local public administration with the European Charter of Local Self-Government) in their future decisions concerning the Republic of Moldova.

3. The rapporteurs' third and last official visit to Chisinau following the decisions by the Constitutional Court

44. The rapporteurs made their third and last official visit to Chisinau on 4 April 2002. The visit was organised in the light of the Bureau's report CG/BUR (8) 118. The rapporteurs were accompanied by the same people as mentioned in paragraph 26 above11.

This visit provided the rapporteurs with an opportunity to hold talks with the Moldovan government authorities concerning the content of Professor Loughlin's draft opinion on the new laws on territorial organisation and local public administration12.

45. Following the visit Professor Loughlin prepared the final version of his opinion, taking account of the Moldovan authorities' observations. This text appears in Appendix 7 to this report. On 11 April 2002 Mr Vasile Tarlev, Prime Minister of Moldova, sent the Congress an official document setting out additional comments on certain elements of Professor Loughlin's draft opinion. This document is to be found in Appendix 11. Professor Loughlin's expert opinion also takes account of recent decisions by the Constitutional Court concerning the laws under consideration.

46. The Constitutional Court indeed gave three decisions during the second half of February and the first half of March 2002. These related to:

The Moldovan parliament's decision (No. 807-Xv of 5 February 2002) to hold early local elections. On 19 February 2002 the Constitutional Court found this decision unconstitutional. Its judgment (published in the Moldovan Official Gazette No. 33-35 of 7 March 2002) confirmed the opinion voiced on a number of occasions by the Congress's President and rapporteurs. In this connection, the judgment made reference to Article 7 of the European Charter of Local Self-Government.

Law No. 764-XV of 27 December 2001 on the territorial organisation of the Republic of Moldova. By this decision, passed on 5 March 2002, the court confirmed that the country's new territorial sub-division - with 32 districts (raiony) replacing the current 10 regions (judets) - was in conformity with the Constitution. The decision was published in Official Gazette No. 40-42 of 21 March 2002.

Law No. 781-XV of 28 October 2001, amending Law No. 186-XIV of 6 November 1998 on local public administration. By this decision, passed on 14 March 2002 and published in Official Gazette No. 46-48 of 4 April 2002, the court found that a significant number of provisions of the reform law were unconstitutional13. In this connection, it made reference to Articles 2, 3, 4, 6, 7, 8 and 11 of the European Charter of Local Self-Government. The provisions deemed to be unconstitutional concerned in particular:

the fact that mayors would simultaneously hold office as mayor and president of the local council;

abolition of procedures making it possible to remove mayors from office by public referendum;

introduction of procedures making it possible for mayors and deputy mayors to be removed from office by the council of the next highest public authority (i.e. the district council);

Parliament's power to suspend a local council on a proposal from the mayor, the president of the district executive committee or the government;

the fact that the same person would simultaneously hold office as president of the district executive committee and president of the district council;

the power of Parliament or the government to remove from office the president, vice-presidents and secretary of a district executive committee;

election of the president, vice-presidents and secretary of the district executive committee from among district councillors;

the fact that presidents of district executive committees would be representatives of both the state and the local authority15.

47. On the whole the Constitutional Court's decisions are consistent with the Congress legal expert's opinion. In some instances the court even goes further than the expert's findings. For more details, see Professor Loughlin's opinion in Appendix 7 to this document. On the basis of the decision mentioned in sub-paragraph a) above, the early elections initially scheduled for 7 April 2002 were cancelled.

48. With regard to these laws, the main difference in the opinions given by, on one hand, the Congress rapporteurs and expert and, on the other hand, the Constitutional Court concerns the decision to reinstate the districts, in accordance with Law No. 764-XV (2001) on territorial organisation. On this subject, the Constitutional Court, unlike the CLRAE representatives, came out in favour of Parliament's decision to replace the ten regions (judets) established in 1998 with 32 districts (raiony).

49. The rapporteurs stressed that, questions of political expediency apart, although the decision to reinstate the districts is lawful from a constitutional standpoint16, it is incompatible, at least as regards the underlying reasoning, with the spirit of the European Charter of Local Self-Government, in particular Article 4.3 thereof17.

According to the rapporteurs this is borne out by statements made by Mr Iovv, who, in his new capacity as First Deputy Prime Minister, is responsible for local public administration and has confirmed that restoration of the districts is intended to help consolidate the "vertical line of power" between central authorities and local authorities.

50. Apart from the statements made by the First Deputy Prime Minister of the Republic of Moldova, further confirmation of a breach of the Charter lies in the Constitutional Court's recent decision [see paragraph 46 c) above] finding that a significant number of the provisions of Law No. 781-XV (2001) on local public administration are unconstitutional.

51. The court unhesitatingly criticised the provisions of that law which, with the clear intention of organising relations between public authorities along hierarchical lines, stipulate that:

Since they have the status of both elected representatives and civil servants, presidents of district executive committees and mayors, at a functional level, shall come under the authority of central government.

Mayors and deputy mayors may be removed from office by the council of the next highest public authority (i.e. the district council).

Parliament shall be empowered to suspend mayors on a proposal from, interalia, the president of the district executive committee.

52. This law breaches the European Charter of Local Self-Government because, having its basis in the concept of interaction of the representative and executive powers and introducing substantial changes in the status and method of election of local elected representatives, it places those elected representatives under the authority of central government both in law and in fact. This is contrary to Article 7.1 of the Charter, which provides: "The conditions of office of local elected representatives shall provide for free exercise of their functions."

Similarly, the provisions making it possible for local authorities' elected bodies to be dissolved or suspended by higher (or central) authorities without any judicial decision are in breach of Article 8 of the Charter.

It is hardly surprising that the Constitutional Court found the provisions mentioned in paragraph 51 above unconstitutional.

53. As regards the political expediency of the decision to reinstate the districts, while reiterating that the Moldovan authorities are entirely free to do as they see fit in this area, the rapporteurs underlined the fact that this decision was probably based on misinterpretation of the underlying problems.

The main ground given by the Moldovan authorities for restoring the districts is linked to public pressure to bring provision of services closer to the citizen.

The rapporteurs are convinced that this result is achievable through a mere decentralisation process. The operation could quite easily have been carried out on the basis of the structures already existing in the former districts.

54. However, by deciding to replace the current ten regions with 32 districts, the Moldovan authorities have multiplied the number of decision-making bodies, both in law and in fact, thereby increasing bureaucracy.

What is more, as already pointed out, apart from frustrating the expectations of the international community, which had already begun to channel investments and financial aid to the judets established in 1998, the process of replacing the judets with the districts will be extremely costly and could worsen the country's already difficult economic situation.

55. In this respect, the rapporteurs also pointed out that the size of a sub-national administrative authority must always be consistent with its powers and responsibilities. It has been noted that, throughout Europe, in a significant number of fields regional authorities are best placed to perform tasks catering for the needs of a large number of citizens.

56. Still on the issue of powers and responsibilities, the rapporteurs noted that the new law on local public administration has exacerbated the confusion that reigns because of the overlapping of central, regional and local government powers and responsibilities in a number of areas (for example payment of civil service pensions and salaries).

The rapporteurs emphasised the importance of proper separation of legislative powers with a view to guaranteeing genuine self-government founded on full democratic legitimacy and clear answerability vis-à-vis the public.

57. With regard to local authorities' financial resources, the legislation in question no longer makes clear mention of the right of local authorities to fix local taxes. In this connection, the rapporteurs drew attention to Article 9.3 of the European Charter of Local Self-Government, providing: "Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate."

58. In practical terms, as regards the immediate future, it is to be welcomed that the decisions of the Constitutional Court referred to above prevent the holding of early elections at the lowest level of local government and oblige the Moldovan authorities to respect the term of office of the representatives at judet level, which, as already stated, does not expire until 2003. Furthermore, it must be said that, with its recent decision on Law No. 781-XV (2001), the Constitutional Court invalidated most of the provisions enabling district authorities to be set up and to function.

59. In view of these constraints, Mr Tarlev, the Prime Minister, confirmed to the rapporteurs that the term of office of existing local and regional authorities would be respected. On this subject, he said that he was ready to take account of the Congress's recommendations concerning decisions to be made regarding the implementation of the territorial reform passed by Parliament.

60. Mention has been made of the committees recently set up by the government to wind up the regions (judets) before the districts are established.

On this subject, the rapporteurs drew attention to the need to ensure that any preliminary steps to establish the district administrative authorities did not undermine the autonomy of the existing local and regional authorities.

61. In future the Moldovan authorities might consider the possibility of treating these districts as purely "administratively decentralised" offshoots of the state, which would make it possible to keep the regions (judets) as autonomous, "politically decentralised" authorities. Territorial organisation along these lines could moreover be confirmed through a revision of the Constitution in due course. The Congress could offer the Moldovan authorities assistance in taking such steps.

62. The Prime Minister has given his word to the rapporteurs that the government will in future refer to the Council of Europe for an opinion any further bill on local public administration or territorial organisation to be brought before Parliament18.

63. Moreover, in the light of Article 4.6 of the Charter, the rapporteurs stressed that it was essential in future to consult all associations representing local and regional authorities in Moldova concerning any reform (or issue) directly affecting them. Such consultation should take the form of an institutional dialogue based on regular meetings and exchanges of information and official documents.

64. The rapporteurs noted that the main associations of local and regional authorities in Moldova intend to hold a discussion forum at the end of April 2002, in which the President of the Republic, the Prime Minister and the relevant parliamentary representatives would be invited to participate. The rapporteurs hope that this forum will facilitate the resumption of peaceful, fruitful relations between the representatives of sub-national authorities, on the one hand, and central government, on the other.

65. In this connection, the rapporteurs also noted that the President of the Republic has decided to institute a "Social Pact" with the people, which will take the form of meetings between the President and various civil society groups, including NGOs, the business community and cultural players, not forgetting local and regional authorities.

66. In view of the above, to facilitate the establishment of a working environment conducive to dialogue with the above-mentioned representatives and foster the inception of co-operation in a climate of trust, the rapporteurs proposed that the Congress organise a meeting of all the parties concerned in Chisinau in the next few months.

III. PROBLEMS CONCERNING THE AUTONOMOUS REGION OF GAGAUZIA

1. Introduction

67. The region of Gagauzia was established by a constitutional law, passed by the Moldovan parliament in December 1994, which granted the region special status as an autonomous territorial entity within the unitary state of the Republic of Moldova. The region has an elected legislature (the People's Assembly) and an executive (the Bashkan, or Governor). The regional executive authority is the Executive Committee, presided over by the Bashkan.

68. The regional authorities now in power were elected in August 1999 for a four-year term. Mr Dumitru Croitor, the Bashkan of Gagauzia, elected by direct suffrage, is also automatically a member of the Chamber of Regions of the Congress19. The next elections should take place in 2003.

2. The legal framework and the constitutional reform process

69. At present autonomy is dealt with in just one article of the Constitution of the Republic of Moldova - Article 111, which provides that "special forms of autonomy may be granted under special status arrangements adopted under organic laws", which must be passed by a three-fifths majority of members of the national parliament.

70. A draft constitutional reform bill, referring to the autonomous status of Gagauzia, was prepared by a government committee in late 2001 and was referred to the Congress, the Venice Commission and the Moldovan Constitutional Court for an opinion (see below). The Gagauz representatives allege that central government decided on this draft text without any real consultation and hence oppose it.

The autonomous status of Gagauzia was established under an organic law of 23 December 1994, which provides that this region shall be an autonomous territorial entity with special status … forming an integral part of the Republic of Moldova.

71. Given the recent tensions concerning removal of the Bashkan from office (see below), it is interesting to note that Article 14 of this law contains provisions on the subject, viz. paragraph 9, which provides that "the Governor of Gagauzia shall be removed from office, before expiry of the term, if he or she fails to respect the Constitution of the Republic of Moldova, this law, local laws or decisions of the People's Assembly, or if he or she has committed an offence" and paragraph 10, which provides that "the decision to remove the Governor of Gagauzia from office shall be taken by a two-thirds majority of the elected members of the People's Assembly …".

72. The Legal Code of Gagauzia, constituting the supreme regional legislative instrument, was adopted by the People's Assembly on 5 June 1998.

Article 70 of the Code also deals with removal of the Bashkan from office, reiterating the provisions of Article 14, paragraph 9, of the law on special status, while adding that allegations of committal of an offence must be substantiated by a court decision. In addition, a decision by the People's Assembly to remove the Bashkan from office must be confirmed by a referendum, organised within not more than thirty days.

73. The requirement of holding a referendum is additional to the provisions of the law on special status and is justifiable since the final decision on dismissal must lie solely with the people, who elected the Governor to office.

74. The rapporteurs noted that the Prime Minister of Moldova had asserted that Gagauzia's autonomy would not be affected by the reform laws mentioned in the first part of this report.

75. Following this presentation of the main legal provisions concerning Gagauzia, before we describe the tensions relating to the Bashkan's removal from office, we consider it appropriate to comment on the proposed constitutional reform, in so far as it concerns the autonomous status of Gagauzia.

3. The rapporteurs' opinion on the proposed constitutional reform

76. The rapporteurs have taken note of the proposals for constitutional reform concerning the status of Gagauzia, made by the relevant government committee. The Chair of this committee sent the President of the Congress a request for an opinion on these proposals20.

Since the Venice Commission was already preparing an opinion on the proposals, the rapporteurs decided to forward their comments to the Commission so that it could take them into account when adopting its opinion.

77. In their opinion the rapporteurs pointed out that, as already stated in its Recommendation 84 (2000), the Congress had noted that:

"The implementation of legislation on local government and the organisation of local and regional authorities poses particular problems with regard to Gagauzia and its special status."

78. In this connection, the Congress had made the following comments and recommendations:

"- it is not desirable for Gagauzia to be considered, by law or interpretation, to be a second tier of regional government in the same way as the other nine regions and the city of Chisinau, despite its special status recognised by the Constitution (see the Venice Commission's opinion in this regard), (...)

- the law on the special status of Gagauzia can only be amended by a special majority; accordingly, it is part of the corpus of constitutional law, and its provisions take precedence over other Moldovan laws in keeping with the hierarchy of legal rules (principle of lex superior),

- from a political and legal point of view, it would be necessary for the Moldovan parliament to confirm the special autonomy of Gagauzia and specify once and for all the institutional nature of this autonomy and the powers of the elected bodies in Gagauzia under the Moldovan legal system. On this basis alone will it be possible to interpret and amend the legislative provisions concerned, which now seem to be in conflict. The Congress is prepared to participate with the Venice Commission in the efforts of the working group established by the Moldovan authorities for this purpose; (…)".

79. In the relevant explanatory memorandum the Congress rapporteur expressed the following opinion:

"In view of the foregoing comments, I consider (as already pointed out in the legal opinion prepared by Professor Philippe De Bruycker, presented to the Venice Commission on 16 October 1999 on behalf of the Congress) that all these problems stem from clashes between, on the one hand, the Moldovan and Gagauz statutes on the special autonomous status of Gagauzia (the 1994 Law on the Special Status of Gagauzia and the Legal Code of Gagauzia adopted by the People's Assembly) and, on the other, the Moldovan legislation on local autonomy and territorial organisation (the Law on local public administration and the Law on territorial administrative organisation (…).

Therefore, in order to secure an overall solution to the problems of relations between the Moldovan central authorities and Gagauzia, we must also determine the exact status of the rules which the Gagauz Assembly is entitled to adopt, within the limits of its jurisdiction. (…).

The foregoing comments confirm that there is indeed a great deal of legal confusion surrounding this issue, and the Moldovan authorities must attempt to sort out the muddle.

The problems arising out of the relation between the Moldovan Law on the special status of Gagauzia and the other organic laws on local administration and territorial organisation call for a political decision rather than legal clarification.

The legal confusion concerning the relationship between the various constitutional and legislative provisions on special autonomous status, local administration and territorial organisation cannot be cleared up on the sole basis of general legal principles. Neither the principle of lex specialis nor, in all likelihood, that of lex superior (which principles are mentioned in the relevant Opinion of the Venice Commission, October 1999) can be considered the sole solution to the problem.

Parliament should lay down, once and for all, possibly by a specific law on regionalisation, the institutional nature of Gagauzia's autonomy and its powers under the Moldovan legal system. A pronouncement from Parliament would facilitate interpretation of, or indeed an amendment to, the legislative provisions in question."

80. In view of the above, the rapporteurs concluded that the initiative to amend the provisions of the Constitution of the Republic of Moldova concerning Gagauzia appeared to be consistent with the recommendations already made by the Congress in the year 2000.

81. They accordingly welcomed the Venice Commission's preliminary findings concerning the political expediency of a revision of the Constitution on the subject of Gagauzia and concurred with the following points:

a constitutional reform, aimed at reinforcing the special status of the autonomous territorial units (by virtue of their substantial powers and responsibilities) while preserving the unitary nature of the state of Moldova, is politically desirable;

formal recognition should be given to the "special" nature of the organic law of 1994 on Gagauzia (this was already pointed out in the explanatory memorandum to Recommendation 84 (2000)); this special nature means that the 1994 law cannot be amended by ordinary laws or "ordinary" organic laws;

in the event of a clash, the regional Gagauz legislation (passed by the People's Assembly) takes precedence over ordinary laws and "ordinary" organic laws.

82. Moreover, regard being had to the document setting out the proposals for a revision of the constitutional provisions concerning Gagauzia, the rapporteurs stressed that:

Article 110 (1) should clearly mention that the special status of Gagauzia must be guaranteed by a special organic law;

Article 111 (1 and 2) might make reference to the Gagauz "legislative, executive and judicial" bodies (in any case, the wording of Article 111 (2) is not really clear);

the proposals concerning the first paragraph of Article 111-1 (6) could give the impression that any change in laws (including ordinary laws and "ordinary" organic laws) may result in amendments to the "special" organic law on Gagauzia. The provision concerning the special majority required to amend that law (second paragraph) does not really lift this ambiguity.

To clarify matters the term "legislation" should be replaced by "special autonomous status of Gagauzia".

83. The Venice Commission adopted its official opinion21, taking account of the above observations, during its meeting on 8 and 9 March 2002, at which the President of the Congress presented the Congress rapporteurs' conclusions.

4. The recent tensions concerning the holding of a referendum aimed at removing the Governor of Gagauzia from office

84. At the request of Mr Dumitru Croitor, Governor (Bashkan) of the autonomous region of Gagauzia, and after consulting the President of the Congress, the secretariat organised a fact-finding visit from 18 to 20 February 2002 to assess the functioning of regional democracy in Gagauzia.

The main purpose of the visit was to ascertain the lawfulness of a referendum aimed at removing the Bashkan from office, initiated by a number of members of the People's Assembly. The Congress delegation for this official visit consisted of Mr Yavuz Mildon, Mr Günter Mudrich, Secretary to the Chamber of Regions, and Mr Dan Medrea22.

The main facts concerning the attempt to remove the Bashkan from office can be summarised as follows23:

85. On the basis of a report by the Court of Audit, the Bashkan is alleged to have embezzled public funds. To date he has had no opportunity to defend himself in court.

On 31 January a group of 21 members of the People's Assembly tabled a motion for the Assembly to vote on the holding of a referendum concerning the Bashkan's dismissal. Despite failing to obtain the required two-thirds majority, the group subsequently decided, at a meeting on 8 February, to go ahead and hold the referendum on 24 February 2002.

86. The voting process within the Assembly and the decision by the group of members to hold a referendum were not validated by the Speaker of the People's Assembly or its legal service.

The Bashkan, relying on the principle of the presumption of innocence, argues that the action taken against him is an attempt by the Communist central government to remove him from the political arena, since he does not always toe the government's line (for example, Gagauzia refused to hold the early local elections called by central government for 7 April, which have now been declared unconstitutional by the Constitutional Court).

87. Although the central government authorities have always maintained that this is a local, or regional, issue to be resolved in Gagauzia itself, both the President of the Republic and the Minister for Foreign Affairs intervened directly by making statements in early February in support of the referendum against the Bashkan.

Envoys from the European Union, the Council of Europe and the United States have visited Gagauzia to ascertain the circumstances of the dispute and appeal to the parties concerned to solve it through negotiation.

Although the regional executive came out against a referendum, the group of People's Assembly members opposed to the Bashkan decided to hold it nonetheless, relying in particular on the backing of Communist mayors at municipal level.

88. The referendum was held on 24 February 2002 in a climate of confrontation. Voting took place in only 13 of the 26 municipalities, giving a turnout of 19.2 % of the regional population (see Appendix III to document CPR/Bur (8) 14). It is to be deplored that the attempt to organise this referendum gave rise to outbreaks of violence. On 4 March President Voronin himself announced that 92% of those who had actually taken part in the referendum had voted for the Bashkan's dismissal.

On 27 February the Prosecutor General of the Republic initiated proceedings against the Bashkan, Mr Croitor, the Speaker of the People's Assembly, Mr Kendigelean, and the head of the Assembly's legal service, Mr Burgudji, for abuse of power having entailed significant losses for the public purse (charges quoted by OSCE sources). According to OSCE information, dating back to 7 March 2002, an armed group of unknown persons abducted the head of the Assembly's legal service, Mr Ivan Burgudji, regarded as one of those responsible for having tried to prevent the holding of the referendum, and took him to an unknown destination.

89. In the light of the evidence before it, the Congress delegation came to the conclusion that the referendum was devoid of any legal basis. Its holding was unlawful. A press conference was organised in Chisinau on 20 February and was attended by about 30 journalists from the press, radio and television. The rapporteur described the various stages of the visit, presented the delegation's findings and answered questions. He appealed for the conflict to be solved by legal means (see Appendix 4 to document CPR/Bur (8) 14).

90. On that occasion, the rapporteur stated in particular that:

a) no official decision to hold a referendum had been taken by the People's Assembly of Gagauzia in accordance with the rules of procedure laid down by law;

b) no decision on the holding of a referendum had been published in the Official Gazette of the People's Assembly, in accordance with the relevant legal provisions;

c) the time-limits laid down by law for organising a referendum had not been observed;

the charges against the Bashkan concerning his management record and responsibilities should be clarified before a competent court in accordance with the legislation in force, or before the People's Assembly in accordance with its procedures and rules. It was therefore surprising that the highest Moldovan authorities had called on the population of Gagauzia to participate in the referendum aimed at removing the Bashkan from office, when it had no legal basis.

Following the release of a statement by the press service of the President of the Republic of Moldova, the President of the Congress issued a "clarification" concerning the rapporteur's official visit to the autonomous region of Gagauzia. (See Appendices I and II to document CPR/Bur (8) 14.)

91. In conclusion, the rapporteurs consider that the holding of a referendum in the circumstances described above was devoid of any legal basis and constitutes a breach of the principle of the rule of law. The authorities should on no account approve or condone this action, which could politically destabilise the entire region. For further information, reference should be made to the report set out in document CPR/Bur (8) 14 of the Bureau of the Chamber of Regions.

APPENDIX 1

RECOMMENDATION 38 (1998)1on the situation of local and regional self-government in the Republic of Moldova

The Congress,

1. Recalling the visit to monitor the Referendum on the status of regional autonomy for Gagauzia in January 1995 and the monitoring of local elections in the Republic of Moldova in spring of the same year;

2. Having taken note of the findings of the expert delegation sent by the Council of Europe to the Republic of Moldova in May 1997 to assist in the drawing up of bills on regional planning, local government and local elections;

3. Having sent a delegation made up of its

two co-rapporteurs, Mr Lycourgos (Cyprus) and

Mr Muller (France), a consultant and a member of the Secretariat, from 4-6 December 1997, and taken note of their report;

4. Welcoming the ratification by the Moldovan parliament of the European Charter of Local Self-Government on 1 July 1997 and anxious to ensure that the Charter’s principles are fully implemented in the country;

5. Bearing in mind the interim report prepared by its two co-rapporteurs on the situation of local and regional democracy in the Republic of Moldova, examined by the Chamber of Local Authorities and the Chamber of Regions;

6. Having taken note of the opinion prepared by Mr de Bruycker, consultant, on the most recent versions of the bill on local government and the bill on regional planning of the Republic of Moldova, both of which have been submitted to the parliament;

7. Considers it necessary forthwith to address the following considerations and recommendations to the parliamentary and governmental authorities which will emerge from the forthcoming parliamentary elections in the Republic of Moldova:

7.1 Regarding the local authorities’ democratic basis

7.1.1 States that the present situation, in which 92 local authorities – accounting for 10% of Moldova’s local authorities but representing a large share of the population nonetheless because they include the capital, Chisinau, and other major cities – are deprived of any democratic representation in the form of a local council or a mayor, is incompatible with Article 3.2 of the European Charter of Local Self-Government;

7.1.2 Considers that this situation, resulting from the fact that the minimum turnout of 50% was not reached in both rounds of the local elections, in spring 1995, should have been resolved as the result of a decision of the Constitutional Court of 6 November 1995, calling for the unconstitutional rule whereby the government appoints the mayor if the turnout is less than 50% to be amended within 4 months and the legal consequences of the provisions of the law declared unconstitutional to be notified;

7.1.3 Regrets that, although the electoral law was amended within 4 months, in accordance with the instructions of the Constitutional Court, two years after this amendment, 92 towns and municipalities still find themselves without democratically elected local councils;

7.1.4 Recommends that the Moldovan government and parliament organise local elections in the 92 towns and municipalities deprived of elected without delay.

7.2 Regarding the supervision of local authority activities and institutions

7.2.1 Recommends that all forms of controls on expediency (contesting decisions and elected representatives alleged to be acting against the public interest) be abolished and that administrative supervision be confined to ensuring compliance with the law in accordance with Article 8 of the European Charter of Local Self-Government;

7.3 Regarding the municipal secretaries, who are currently appointed by the Government, recommends that the Moldovan authorities adopt a statute in accordance with the principles of administrative independence provided for under Article 6 of the European Charter of Local Self-Government.

7.4 Regarding local finances

7.4.1 Notes that the present situation is not compatible with Article 9 of the European Charter of Local Self-Government, particularly in view of the extreme paucity of local authorities’ own resources and the lack of clear and transparent rules on financial transfers to local authorities;

7.4.2 Recommends that the Moldovan governmental and parliament pass a law on local finances honouring the commitments entered into on ratification of the European Charter of Local Self-Government and abiding by the opinions of the Council of Europe’s experts on the subject.

7.5 Regarding regionalisation

7.5.1 Notes that the present situation, with 37 districts, 4 municipalities outside the districts, and the autonomous region of Gagauzia, does not meet the standards of regional self-government applied in western Europe, particularly in view of the fact that the executive body is controlled by the state authorities and is not accountable to an elected council;

7.5.2 Welcomes the determination of the Moldovan government to set up 8 new regions which, along with the city of Chisinau, would replace the 37 districts, thereby equipping the country with a modern system of regional government based on the fundamental principles of the draft European Charter of Regional Self-Government;

7.5.3 Welcomes the political consensus among Moldovan associations of local authorities concerning the regionalisation project;

7.5.4 Recommends that the Moldovan parliament adopt the bill on regional planning tabled by the government.

7.6 Regarding transfrontier co-operation

7.6.1 Welcomes the commitment expressed by the government and the associations of local authorities towards encouraging transfrontier co-operation between local and regional authorities;

7.6.2 Recommends that the government and the parliament adopt the necessary measures – either as part of a general law on local self-government or through a specific law – to establish a legal framework governing transfrontier co-operation between local and regional authorities based on the Outline Convention of the Council of Europe and the protocol to it.

7.7 Regarding the local government and regional planning bills tabled before the parliament

7.7.1 Welcomes the generally high standard of the text, which covers both local and regional authorities and represents a major step towards setting up an institutional framework for local and regional democracy in accordance with the principles upheld by the Congress;

7.7.2 Recommends that the Moldovan parliament adopt these bills as quickly as possible while taking account of the following proposals aimed at making them clearer and fully compatible with the European Charter of Local Self-Government:

– clarify the terminology used in the bill on the organisation of local and regional authorities, particularly as regards the term "district", with reference to the opinion set out in the appendix to this draft;

– take account of the opinion on the bill on local government also set out in the appendix, concentrating on the following points:

• clarifying the functions of communes and municipalities on the one hand and districts on the other to avoid the overlapping of responsibilities;

• establishing the right of local authorities to co-operate in accordance with Article 10 of the Charter;

• restricting the possibility of dissolving local councils, which should only be considered for very serious cases where the council cannot function or is incapable of functioning;

• confirming supervision over local authorities to a review of lawfulness by doing away with "administrative and budgetary supervision" and above all preventing the authorities from taking account of the "general interest of the citizens", which amounts to supervision of expediency and is therefore contrary to the Charter;

• seeing to it that the power to appoint and dismiss municipal and district secretaries falls to the local and regional authorities and not the government;

• deleting Section 98, which provides for limits to financial independence, in breach of the Charter;

• giving details, in Section 88, of the objective criteria to be used to calculate financial transfers to local and regional authorities so as to avoid arbitrary decisions;

• clarifying the functions of the "administrative commission" referred to in Sections 117 etseq with a view to ensuring that it does not encroach on the powers d regional authorities;

• deleting Section 121, which states that conflicts between the central authorities and the local and regional authorities shall be settled by the government and is contrary to Article 4.4 of the Charter.

8. In order to complete the legislative and administrative framework necessary for the development of local and regional self-government

8.1 Recommends that the Moldovan government and parliament draw up and pass a law on local finances, a law on the property of local and regional authorities, and a law on local government officers.

9. Regarding the training of local and regional government staff

9.1 Recommends that the Committee of Ministers release the funds needed to help the Moldovan authorities to set up special training for local and regional government staff with the assistance of ENTO.

10. Regarding the autonomous region of Gagauzia

10.1 Welcomes the fact that the new status of the autonomous region of Gagauzia has made a decisive contribution towards settling the political conflict in this region, thanks to the restraint both of the Moldovan authorities and of the regional authorities;

10.2 Considers it necessary for certain provisions of the Statute to be revised, particularly those relating to the definition of the powers and responsibilities of the autonomous region;

10.3 Therefore welcomes the fact that the European Commission for Democracy through Law (the Venice Commission) is working in co-operation with the Congress to provide the Gagauz regional authorities with assistance in drawing up the "Legal Code of Gagauzia" provided for under Article 12 of the statute on the special legal status of Gagauzia.

11. Regarding the situation in Transnistria

11.1 Regrets the fact that the 1995 agreement between the Moldovan government and the Prime Minister of the Russian Federation providing for the gradual withdrawal of the Russian 14th Army from Transnistrian territory has not been ratified and implemented so as to enable a fair statute on the autonomy of the Region to be drawn up;

11.2 States its willingness to assist in the drafting of a Statute on autonomy for the Region of Transnistria, once the political situation so permits and provided that the Moldovan authorities so request.

Appendix

Opinion of the two bills of the Republic of Moldova on local and regional self-government

I. Introduction

It would seem that considerable progress has been made since the previous versions of the texts on the organisation of local and regional authorities and on local government were submitted and dealt with in an expert report by the Council of Europe in May 1997 and that many of the observations made at that time have been taken into account. The fact remains that quite important comments still need to be made concerning the latest versions.

II. Opinion on the bill on the organisation of local and regional authorities

The bill on "the organisation of local and regional authorities" is clearly a general text which deals with the various levels of local and regional authority in the Republic of Moldova whereas the bill on "local government" deals with their organisation. The title of the second text should perhaps be amended so as to give a better idea of its content and, in particular, to make it clear that it is complementary to the first bill.

It is regrettable that the concepts used in Moldovan law do not make the necessary clear distinction between decentralised state authorities and entirely self-governing local authorities. The fact that Part XI of the bill on local government also covers arrangements for the "sectors (areas)" when these are clearly local offices of the State authorities (or even subdivisions of the municipalities) reflects this. The concept of "local and regional administrative bodies" used to describe the villages, communes, towns, municipalities and districts does not fully reflect their independence unless this is simply a question of poor translation. The Moldovan authorities might do better to use the term "local authority" so as to avoid any confusion with the local offices of the State authorities. Furthermore, the distinction between villages, communes, towns and municipalities seems to be just as complex as lacking in any real legal effect. It might be suggested therefore that, in order to simplify matters, a single generic term could be used to cover all the basic local authorities.

— Section 2 of the bill, which simply reproduces Article 109 of the Constitution, should be deleted. Moreover, unless there has been an error in the numbering of the Articles of the English version of the Constitution sent to me, I cannot understand why Section 1 does not refer to Article 109 but only to Articles 110 and 111.

— The meaning of Section 7, paragraph 2, according to which "The municipality may include within its structure independent local and regional administrative bodies" is not clear. Unless this stems from a mistake in translation, there is some confusion between Section 7, paragraph 4, under which "Municipalities may be divided into sectors", and Section 9, paragraph 3, according to which "Districts can be divided into sectors (areas)". The term "sector" should be reserved for only one of these levels of local authority. Part XI of the local government bill on the "sector or area" only serves to add to the confusion of the reader. What is needed is a clear explanation of what exactly is covered by the notion of a sector.

— Section 9, according to which "the district is a local administrative entity made up of villages (communes), towns and municipalities – which are the basic building blocks for the organisation of local and regional authorities in the Republic", is a particularly muddled clause. It would seem that the district is the second tier of authority in Moldova, falling between the lowest level and the local level. The aforementioned Section raises the question of what autonomy the district has with respect to the basic authorities from which it seems to emanate. Considering that the intention seems to be to make the district an authority in its own right, as confirmed in Section 7 of the local government bill, Section 9 should be amended to state simply in paragraph 2 that the geographical boundaries of districts shall be based on those of villages, communes, towns and municipalities. The same comment can be made regarding Section 10, which is probably intended for Gagauzia; this should be expressly stated to make the text more understandable.

— Assuming that this is not a mistake in translation, a question mark can be put over the use of the term "district" to describe the intermediate tier of local authority. This term is rarely used [at least in French] and evokes [in French] the idea of a decentralised state authority1; accordingly, the Moldovan authorities could be questioned on the meaning of this term in Moldovan and possibly advised to use the word "region" instead, all the more so because this word is used to describe the elected district authority referred to as "conseil régional" (or regional council) in the French translation of the local government bill.

— Section 16, paragraph 2, which provides that a village can only be described as such if it has a population of 1 000 or more, conflicts with Section 14, paragraph 1 of the local government bill, which states that the local council for places with a population under 1 000 shall have 7 members.

III. Opinion on the local government bill

Right from the outset it should be said that the bill is along the right lines and represents an admirable effort to implement the principles of the European Charter of Local Self-Government. Some provisions, such as Sections 8, paragraph 2, 9 and 86, paragraph 2, are obviously modelled directly on the Charter. The bill covers local and regional self-government quite comprehensively; it is particularly satisfying that it contains provisions relating to property and finance, even though they still have to be supported by further legislation.

— Paragraphs 1 and 3 of Section 2, which simply reproduce Article 109 of the Constitution, should be deleted.

— Section 13, paragraph 3 is already covered by Section 9 and should be deleted.

— It should be checked whether the "local council" referred to in Section 6 is the same as the "administrative commission" referred to in Section 117 and, if so, the same terminology should be used if this is not just a translation problem. Furthermore, it is not clear why this provision insists on "co-ordination of the activity of the local councils with a view to providing public services benefiting the region and municipality", nor exactly what is meant by this: does this mean co-operation between municipalities, or the provision of regional services, bearing in mind that it cannot cover the provision of municipal services, which is of course the responsibility of the municipalities. It is also striking that the bill contains no mention of the right of local authorities to form associations to co-ordinate activities. This represents a shortcoming with respect to the European Charter of Local Self-Government.

Regarding the basic local authorities in particular:

— The attempt to define the functions of the local authorities in the law establishing them should be saluted, because, as the recent work of the group monitoring the implementation of the Charter has shown, this is very rarely done. However, the functions of the basic local authorities and the districts are not always defined clearly enough and, above all, they overlap. For instance, both tiers of local government are responsible for "public hygiene", "health protection", "social problems and social welfare centres and institutions" and "social welfare and the upkeep of social welfare and health establishments". At the very least a clearer distinction should be drawn between the responsibilities of each tier.

— According to Sections 18 and 41, deputy mayors are appointed by the local council on the mayor’s proposal. It should be stipulated whether they must be selected from among the members of the local council or not. Under Section 41, deputy mayors are politically responsible to the council, by contrast with mayors. It should be checked whether the differential system thereby imposed on the local executive is coherent overall.

— It is odd that Section 19 provides on the one hand that the local council elects its chair and on the other that the local council shall be convened by the mayor. It would seem more logical for the council to be convened by its chair so as to emphasise that the chair can act as the counterweight to a directly elected mayor.

— The bill does not make it clear whether the mayor is directly elected by the people. This point should be clarified.

— Paragraph 2 of Section 24 requires that a 2/3 majority be achieved for certain decisions to be taken, assuming that this is not just simply a rule concerning a quorum. Attention should be paid to this issue because it may cause certain impediments which could hinder the smooth running of the local authority.

— It should be ascertained whether the time-limit stipulated in Sections 21, paragraph 5, and 30 paragraph 5, does in fact apply to the notification of elections and not just to the decision taken on the matter.

— The bill contains many detailed provisions on the forms of direct supervision over the members of local councils. Section 30 is particularly important in this respect. Paragraph 1 should only allow the dissolution of the council in very serious cases and should not establish the right to suspend its activities. It is particularly important to do away with any penalty imposed on councils in the event of an abuse of authority. Moreover, since the scrutiny of local and regional authorities is supposed to be confined to lawfulness, we cannot see how a court could be bound to set aside a decision on the ground that it was "not in keeping with the overall interests of the village, commune, town or municipality". Likewise, the possibility provided for in paragraph 6 of dismissing a councillor if he or she "violates the constitution or other rules, goes against the interests of the local authority or takes part in unconstitutional activities" should be withdrawn even though confirmation by a court is required. As in Section 43 on the mayor, the rule should cover only the most serious cases.

— There are just as many provisions relating to the supervision of decisions. Sections 26, paragraphs 2, 30, 109, 111b and, above all, 112 stipulate that this supervision is carried out by the courts at the request of the prefect. A more appropriate solution may be to entrust administrative supervision of the local authorities to the prefects, limiting this strictly, as stipulated in the Charter, to a review of lawfulness, combined with a special right of appeal to the courts for the local authorities. In addition to this, the notion of "administrative and budgetary supervision" used in Section 111.i. is too vague and should be clarified, particularly as regards how it differs from the review of lawfulness. Likewise, the meaning and scope of Section 123 should be clarified as regards the "supervision of the performance of the mayor’s duties".

— The meaning of Section 38.i. should be clarified in the light of Section 49.

— The status and the means of appointment of the local or municipal secretary should be reviewed on the basis of the fundamental principle that this senior official is indeed an organ of the local authority and that he or she should therefore be appointed and, where appropriate, dismissed by the local authority, even if it means that he or she has a status governed by the central authorities and the right to appropriate means of appeal.

Regarding districts in particular:

Generally speaking, we can only congratulate the Moldovan authorities on their decision to establish strong regional authorities, which represents a major step forward in view of the present situation of the districts. Particular emphasis should be placed on the fact that the future regions will have their own assembly and a genuine executive body (the chair of the regional council and the standing committee), since the role of the prefect in the running of the regions will be strictly limited. Section 109, paragraph 2 usefully stipulates that "there shall be no subordinate relationship between the heads of the state authorities (the prefects) on one hand and the local and regional councils and the municipality of Chisinau on the other". Section 61 simply provides that "the head of the state authorities (the prefect) may attend the sessions of the standing committee". Provided that it is clear that the prefect is not entitled to vote at these sessions, this provision does not undermine the autonomy of the region. However, it could be argued that the existence of a district administrative commission is enough to ensure that there is co-ordination between the state authorities and the districts.

— It is not clear why Section 55 insists on "the co-ordination of the activity of village (or communal) councils with a view to providing public services benefiting the region", nor exactly what is meant by this: does this mean co-operation between municipalities, or the provision of regional services, bearing in mind that it cannot cover the provision of municipal services, which is of course the responsibility of the municipalities? This provision should include a clause giving overall powers to the districts in line with the draft European Charter of Regional Self-Government.

— The existence of a secretary at district level prompts the same comments as that of a secretary at local level.

— Section 66 calls for the same comments as

Section 30.

— It is essential for Section 88 on financial transfers to the regions and local authorities to state explicitly that these must be carried out according to a number of objective criteria so as to remove any element of arbitrariness in the distribution of funds. Explanations should also be sought regarding the precise meaning of this provision.

— Section 93, paragraph 2 requires an explanation.

— Section 98 should probably be deleted. It is impossible to force the local authorities to adapt their own budget to fit in with the state budget without seriously undermining local self-government.

— The concept and the exact role of the "administrative commission" referred to in Section 117 et seq should be clarified. With respect to the local and regional authorities, this should only be a co-ordinating body, for it cannot take any binding decision concerning their activities without undermining their autonomy. Section 121, which states that "conflicts between the central authorities and the local and regional authorities shall be settled by the government", is not admissible.

— Care should be taken to ensure that the personal legal liability of local representatives (including civil liability) provided for in Section 132 does not prevent them from performing their duties freely. The law should also provide for a form of direct liability for local authorities as legal entities.

2. English translator’s note: The word "district" is more commonly used in English than in French and therefore may not be so entirely inappropriate in an English translation of the bills in question. Nonetheless, even in the English the word "region" may be a better and much clearer solution for all concerned.

The Congress of Local and Regional Authorities of Europe - Council of Europe

4th SESSION (Addendum)

RESOLUTION 59 (1998)24 on the situation of local and regional self-government in the Republic of Moldova

The Congress,

1. Having regard to the interim report on the situation of local and regional democracy in the Republic of Moldova drawn up by the two co-rapporteurs, Mr Lycourgos (Cyprus) and Mr Muller (France) and examined by the Chamber of Local Authorities and the Chamber of Regions;

2. Having regard to Recommendation No. 38 on the same subject;

3. Recommends that the national associations of local and regional authorities provide all the assistance they can to the new Moldovan associations (the Federation of Local and Regional Authorities and the Association of Mayors) in their efforts to set up effective structures and promote local self-government at a practical level in their country;

4. Calls on the Moldovan associations of local and regional authorities to consider setting up separate associations for the local authorities and the regions once the law on the 8 new regions has been passed;

5. Instructs the Working Group on the situation of local democracy in Moldova and the Working Group on regionalisation to continue examining local and regional self-government in the Republic of Moldova and submit a final report as soon as possible.

The Congress, having before it a proposal from the Chamber of Regions,

1. Recalling:

a. its Recommendation (38) 1998 on the situation of local and regional self-government in the Republic of Moldova, in which it formulated a number of comments addressed to the Moldovan parliamentary and governmental authorities;

b. its Resolution (59) 1998, in which it decided to continue monitoring the development of local and regional democracy in Moldova with a view to producing a final report;

2. Having taken note of the results of the official visits to Moldova by the rapporteurs of the relevant working groups for the purpose of implementing the above-mentioned decision;

3. Having regard to the report prepared by Mr Nicolae Radu (Romania, R), Rapporteur on regional democracy in Moldova, as examined by the Chamber of Regions;

4. Having taken note of the opinion prepared by Professor Philippe De Bruycker, consultant, on the legislation mentioned below;

5. Commends the Moldovan Parliament for responding positively to its recommendation to pass the bill prepared by the government on the country's new organisation of local and regional authorities; in this connection, it is pleased that in November 1998 the Parliament enacted:

a. a law on the organisation of local and regional authorities enabling nine new regions (judets) to be established;

b. a law on local government (also concerning the regional level);

6. Welcomes the passage by the Moldovan Parliament of other legislation on local financing, local property and the status of regional elected representatives which also refer to the regional level;

7. Concerning Gagauzia, is of the opinion that its special autonomy should be reflected not only in laws and regulations but also in practice, in conformity with the proposals contained in paragraph 15.e of this recommendation;

8. Is pleased that the discussions concerning the former district (raion) of Taraklyia have been concluded with the creation of a new region in addition to the nine others created by the law on the organisation of local and regional authorities; that is a clear sign of the Moldovan authorities' determination to respect the rights of national minorities and testifies to their efforts to develop pluralist democracy at regional level;

9. Welcomes the fact that, following the creation of the ten regions, Moldovan citizens were able to choose directly the representatives of these new regional administrative entities in democratic elections;

10. Thanks the Moldovan central authorities for inviting it to observe these elections, including those concerning Gagauzia and Taraklyia;

11. Is pleased that in July 1999, following its recommendations, the representatives of the new regions and Gagauzia created an association representing their interests (Association for Regional Development through Local Self-Government);

12. Considers that the creation of this association constitutes an important element in promoting co-operation between these regions and their representation in dealings with the central authorities;

13. Is convinced that a settlement of the conflict between the Moldovan authorities and the authorities of Transdniestria must remain a national priority in the context of preparations for Moldova's greater European integration;

14. Recalls that it is prepared, if the Moldovan authorities so wish, to lend assistance, in conjunction with the Venice Commission, in defining a special autonomous status for Transdniestria;

15. Concerning the establishment and development of regional democracy in the country, considers it necessary to make the following comments and recommendations to the Moldovan governmental and parliamentary authorities:

a. The setting up of self-governing structures on a regional basis constitutes a very important contribution to resolving the problems of integrating the peripheral regions in the social, political and economic life of the country. From this point of view, the creation of new regions must be welcomed as a first step in this direction;

b. It must also be pointed out that the regionalisation process can create the necessary foundation for the economic development of the entire country, which continues to be one of the Moldovan authorities' priorities;

c. It is urgently necessary to put into place a specific and distinct legal framework for the recently created regions as well as the city of Chişinau, which have been experiencing problems and have needs that very often differ from those of local municipalities in the strict sense (towns and villages);

d. The law on local government may be said to be on the right track, because it covers a large number of questions that concern regional self-government. However, it needs to be improved upon in order to:

i. clarify the relationship between the local authorities and the new regions; from this point of view, there is reason to doubt the appropriateness of giving the regions general powers for co-ordinating municipal activities,

ii. spell out the status of prefects whose functions – despite the fact that the law states that there is no relationship of subordination between the prefects and local government bodies – do not seem to be well accepted by the recently created regional authorities,

iii. increase the number of meetings of regional councils during the year: four meetings do not seem to be sufficient,

iv. define the links between the adoption of the regional budget and the adoption of the national budget,

v. provide for civil and criminal liability for regional authorities as legal entities alongside the direct personal liability contemplated for elected representatives;

e. Finds that the implementation of legislation on local government and the organisation of local and regional authorities pose particular problems with regard to Gagauzia and its special status. In this context, it wishes to formulate the following comments and recommendations:

i. it is not desirable for Gagauzia to be considered, by law or interpretation, to be a second tier of regional government in the same way as the other nine regions and the city of Chişinau, despite its special status recognised by the Constitution (see the Venice Commission’s opinion in this regard),

ii. the institution of a prefect in Gagauzia does not seem to be in keeping with the autonomy granted this entity; this comment also flows from the status of the Governor of Gagauzia (Bashkan) who, as ex officio member of the government, represents it in the region in which he was elected,

iii. conflicts might arise in the future between the prefect and the Gagauzia authorities that jeopardise the balance achieved after long and difficult negotiations between the central authorities and the Gagauzia authorities,

iv. the law on the special status of Gagauzia can only be amended by a special majority; accordingly, it is part of the corpus of constitutional law, and its provisions take precedence over other Moldovan laws in keeping with the hierarchy of legal rules (principle of lex superior),

v. from a political and legal point of view, it would be necessary for the Moldovan Parliament to confirm the special autonomy of Gagauzia and specify once and for all the institutional nature of this autonomy and the powers of the elected bodies in Gagauzia under the Moldovan legal system. On this basis alone will it be possible to interpret and amend the legislative provisions concerned, which now seem to be in conflict. The Congress is prepared to participate with the Venice Commission in the efforts of the working group established by the Moldovan authorities for this purpose;

f. From a general point of view, recommends that the new legislative and administrative machinery for regional self-government be improved and revised to take account of the above-mentioned problems;

g. On this basis, the requisite measures should be taken to implement this legal framework so that the regional authorities can:

i. govern their regions within the limits of the autonomy recognised by law and the Constitution, in particular as concerns reconciling financial resources and powers,

ii. establish far-reaching relations with authorities in other European countries and become involved in associations representing them at international level.

a. its Recommendation (38) 1998 on the situation of local and regional self-government in the Republic of Moldova, in which it formulated a number of comments addressed to the Moldovan parliamentary and governmental authorities;

b. its Resolution (59) 1998, in which it decided to continue monitoring the development of local and regional democracy in that country with a view to producing a final report;

Having taken note of the results of the official visits to Moldova in 1999 and 2000 by the rapporteurs of the relevant working groups in order to observe the various local and regional elections and implement the above-mentioned decision;

Having taken note of the report drafted by Mr Nicolae Radu (Romania, R) on regional democracy in Moldova, instructs its Bureau to address the recommendation which it adopted on the basis of this report to the governmental and parliamentary authorities of Moldova;

Concerning local aspects, welcomes the establishment by the above-mentioned authorities of a general legal framework for the full exercise of local self-government;

However, in view of the findings of the official visits by Mr George Lycourgos (Cyprus, L), rapporteur on the situation of local democracy in Moldova, concludes that it is not yet possible to finalise a report in this regard owing to the following circumstances:

a. other legislative instruments, for example the law on administrative disputes, have to be published and given effect in order to supplement the above-mentioned legal framework;

b. the specific legislative instruments already passed by Parliament (laws on local financing, the municipal heritage, the status of local elected representatives, etc.) are not yet fully operational, which makes an objective assessment of their scope and effectiveness particularly difficult;

In view of the above, instructs the Institutional Committee of the Chamber of Local Authorities to resume consideration of local self-government in the Republic of Moldova and submit a final report to it as soon as possible;

Instructs its Bureau to consider organising a colloquy in Moldova on the problems posed by self-governing status in countries with a unitary structure;

Is prepared to participate with the Venice Commission in the activities of the working group on Gagauzia set up by the Moldovan authorities.

APPENDIX 3

Strasbourg, 28 September 2001 CG/INST (8) 7

INSTITUTIONAL COMMITTEE

Appeals from the National League of the Associations of Mayors and from the Agency for the Development of Regional Self-Government through Local Democracy of the Republic of Moldova

Liga Naţională a Asociaţiilor de Primari

Attn.: To the Congress of Local and Regional Authorities of the Council of Europe

Appeal of the National League of the Associations of Mayors of the Republic of Moldova to the Congress of Local and Regional Authorities of the Council of Europe

Dear Sirs,

In line with the statutory decision of the National League of the Association of Mayors of the Republic of Moldova concerning the need to adopt adequate measures to the recent policies of the central Government that try to diminish the content of the local autonomy in our country affecting the core interests of the elected local public authorities, we hereby appeal to the Congress of Local and Regional Authorities of the Council of Europe with the request to protect our rights against the abuses and discriminations from the state authorities that oppose to the most important provisions of the European Charter of Local Self-Governance.

We would like the Congress to delegate a special Mission to the Republic of Moldova and to monitor the violations that are committed in this respect to the fundamental rights and competencies accorded to the local public authorities by law. We attach to this request a list with the following documents, confirming the contested facts by our Association of local elected officials, and other relevant acts:

Sincerely,

Vasile Balan

President of the National League of the Mayors Association

Mayor of the Telesheu Mayoralty, Orhei District

30 august, 2001

Note of the National League of the Associations of

Mayors of the Republic of Moldova to the Council of Europe

The General Meeting of the National League of the Associations of Mayors observes that the Parliament and the Government of the Republic of Moldova do not act in full compliance with the provisions of the European Charter on Local Self-Government, ratified in 1996 and accepted as a set of general norms for the legislation and fundamental principles in the Constitution of the Republic of Moldova.

The most important violations of the above mentioned principles and norms were especially registered after the recent power-shift in February 2001, when the Communists gained absolute majority in the Parliament of the Republic of Moldova. The attitude of the new authorities towards the local public authorities has changed dramatically. The new Parliament started to see the local public authorities only as subordinated to the central administration and took steps and policies to increase the re-centralization of the state power throughout the country.

In particular, the Parliament of the Republic of Moldova announced its plans to change the current territorial-administrative organisation of the country from the existing regions (now – 10 judetse) back to the former raions, that earlier existed under the Soviet regime (40). According to the new drafts of the law, the Parliament will dissolve the existing Prefecture Offices, as deconcentrated bodies of the central government, and will re-establish Executive Committees that existed earlier in the former raions. The Concept envisions the appointment of the Chairmen of the future raion’s Executives that will cumulate both Executive and Elected Competencies (violation of the Article 3, Paragraph 2 of the ECLSG). Moreover, it is supposed that the future Executive Chairmen will be appointed by the President of the country, at the suggestion of the Prime-Minister, that contradicts strongly with the ‘elective character’ of the local and regional authorities, stipulated in the Constitution, as well as in the European Charter of Local Self-Governance.

It is expected that the Parliament will apply these new plans and intentions as soon as they will adopt the new amendments to the Election Code and Law on Local Public Administration will be enforced. Accordingly, the Parliament of the Republic of Moldova is currently looking at the possibility to announce anticipated local elections (presumably – in the end of November, 2001) and thus – to brake the 4-years mandate of the current elected officials that has been delegated to them after the last May 1999 Local Elections (both mayors and local councillors). This contradicts with the will of the electorate and with the free exercise of the public competencies delegated to the election officials by free, universal, general vote.

A similar trend is registered within the local public finances. Thus, on June 22, 2001, the Parliament of the Republic of Moldova amended the Law on Local Public Administration and the Law on Local Public Finances. The changes aimed to transfer to the Prefect the authority ‘to create drafts of the budgets of the regions and drafts of the budget execution reports’ and ‘present these drafts to the judet councils for their consideration’ (art.111, b and c). Similarly, the specific Financial Division of the Regional Councils has been transferred by this amendment under the subordination of the Prefecture Offices, depriving all local authorities from the free exercise of their financial autonomy because, according ‘regional budgets’ in Moldova meant ‘consolidated budgets of all local and municipal public authorities in a distinct region’. We believe that there is not any justification for such a transfer of financial competence to the Prefect, who is now the sole ‘chief accountant for all credits’ at the judet level and that the amendment of the art.59 of the Law on Local Public Administration in the Parliament of the Republic of Moldova deprived local and regional authorities from considerable competencies and authorities.

The Government of the Republic of Moldova and the Parliament of the Republic of Moldova ignored and essentially did not addressed the requests and declarations adopted by various associations of the mayors that belong to the National League of the Association of Mayors. The majority of the requests for discussing these all issues with the key-governmental officials and representatives of the Presidency and Parliament of the Republic of Moldova have not been replied to.

It should be mentioned that the National League of the Associations of Mayors is deeply concerned about the way how these intentions and plans are formulated by the Government and Parliament Officials, as the elected officials have not any possibility to express their opinions and to influence the process of adjusting the legislation. In addition to the un-transparent and procedures used by the Parliament for producing their plans, there is not any possibility to express independent opinions about this process in the public mass media, now – totally controlled by the ruling party. Public opinion is generally unaware about the changes initiated in the media and largely ignored by the key-officials, announcing fundamental changes to the existing system of local public administration.

Contrary to the Constitutional provisions stating that every imperative mandate is nullified, the acting Election Code (Article 177, paragraph 2) stipulates a possibility to revoke Mayors by local referendums while the provisions for the revocation are very unclear and easy to misunderstand. In fact, this provision is misused by the central administration to get rid from the most active Mayors that disagree or publicly contested their decisions.

The National League of the Associations of Mayors regrets that central authorities in the Republic of Moldova do not pay sufficient attention to the real problems confronting local public authorities in the country. Among them, the most important is clarify the delimitation of competencies (respective rights and duties) between the municipal/communal public authorities of the first administrative degree and the II administrative degree, represented by Judet public authorities. According to the current legislation, the statute of Mayors is pervasively unclear, inconsistent and contradictory in many regards that make the Mayors to feel that they are given responsibilities without appropriate authority and resources to enforce the decisions of representative bodies. There is a stringent need to clarify and improve the fiscal system and revenue generation system, including the tax collection mechanism or design of the taxation system and budgeting, still dominated by the Ministry of Finances at every level.

Currently, Mayors are required by order, and occasionally threatening letters, to collect all taxes, including social taxes (notwithstanding current legislative requirements to the contrary). In practice the budgetary approval and allocation process does not allow mayors to reserve taxes collected for local fees and services. They want tax collection to be the responsibility of the government fiscal agents, except for local fees and taxes specified in the tax code. Similarly, there is strong need to clarify the respective roles and improve the link between the Judet Councils and the local public authorities and strengthen the system related to the financing of public services with a minimum guarantee for education, health, culture and state subsidies as it is perceived that insufficient funds are passed down to cover costs. The local level is expected to finance services for which they have no tax base to cover.

With all these considerations in mind, the National League of the Associations of Mayors is addressing the Congress of Local and Regional Authorities of the Council of Europe with the request to assess the compatibility of these recent trends with the commitment of the central authorities of the Republic of Moldova with the European Charter on Local Self-Governance and, or with other international documents. We are ready to assist whatever documentation mission you may consider to undertake in the Republic of Moldova with all necessary information and meetings that would help you to make an objective perception about the current concerns and constraints of the local and regional governments in the Republic of Moldova. As an association of the local officials we trust that the virtue of the European standards on local autonomy shall be continuously protected and affirmed, and every step that affect it must be observed and contained. We do hope that the Council of Europe can encourage the central authorities of the Republic of Moldova to preserve the necessary respect and observance to the fundamental values that shape our current needs and responsibilities.

September 3, 2001

Chisinau, Republic of Moldova

Secretary of the National League of the Associations of Mayors

Victor Mocanu

Re: Violation of regional autonomy in the Republic of MoldovaChisinau, September 7, 2001

Dear Sir,

You may like to remember that in 1998, the Moldovan Parliament adopted new laws on local autonomy and territorial organization aimed at decentralizing the state power in the Republic of Moldova. From all perspectives, it was an important step towards the consolidation of local and regional governments in our country.

Consequently, new regions have been created with elected bodies enjoying some degree of autonomy. The Congress welcomed the reform and encouraged the central authorities of the Republic of Moldova to continue their implementation.

Unfortunately, we should notify you that during the recent months a number of negative tendencies directed to re-centralize the power from the local and regional level to the central administration have been initiated by the central government. Regions in the Republic of Moldova will be most affected and, there is a declared intention of the majoritarian faction in the Parliament of the Republic of Moldova, and the central Government as well, to abolish regional bodies elected for a 4-years term in May, 1999. With this in mind, several steps have been taken recently and you may find them resumed in the note attached to the present letter. Such measures are aimed mainly at constraining application of the principles of subsidiarity and political independence of the regional entities in our country.

The Bureau of the Associations of Regions (ADRAL) remains very concerned as their appeals have not been taken into consideration by the central authorities and their prospective initiatives are likely to get into force very soon (e.g. October, 2001).

We would be grateful if we could take the appropriate dispositions to examine within the Congress’ specific bodies – and if need be alongside with advised experts and Moldovan representatives – the current situation of regional democracy in the Republic of Moldova and its compliance with the European Charter of Local and Regional Democracy.

We rely very much upon Congress expertise and lobbying disponibilities and thank you in advance for your kind cooperation. Sincerely yours,

Anatol ChetraruChairman of the Lapushna Judet CouncilPresident of ADRAL (Agency for Regional Development Through Local Autonomy)

To: Mr. Llibert CuatrecasasPresident of the Congress of Local and Regional Authorities of the Council of Europe

Co: Mr. Risto Koivisto, President of the Chamber of Regions Mr. Rinaldo Locatelli, Chief Executive of the Congress Mr. Gunter Mudrich, Secretary of the Chamber of Regions

APPENDIX 4

Programme of the Congress delegation's visit to the Republic of Moldova

APPENDIX 5

Programme of the official visit to the Republic of Moldova

(January 28-30, 2002)

APPENDIX 6

PROGRAMME of the visit to the Republic of Moldova of the Rapporteurs of the Congress of Local and Regional Authorities of Europe

COUNCIL OF EUROPE

(April 3-5, 2002)

APPENDIX 7

OPINION ON THE Laws of the republic of Moldova 764-XV on territorial organisation of 27 December 2001 (repealing Law 191-XIV of 12 November 1998) and 781-XV on local public administration of 28 December 2001(Modifying the Law 186-XV of 6 November 1998)

By

John LOUGHLIN

Professor of Political Science, Cardiff University

Visiting Professor, Institut d’Etudes Politiques de Paris

Visiting Fellow, European University Institute, Florence

Expert to the Congress of Local and Regional Authorities of the Council of Europe

I. INTRODUCTION

This is the third occasion when the Council of Europe has asked for an expert opinion on two laws on the administrative subdivision of the territory and the law on local public administration (local government) in Moldova. The first two opinions were given by my colleague expert of the Congress of Local and Regional Authorities of the Council of Europe (henceforth the Congress), Professor Philippe de Bruycker. In his first opinion, delivered in February 1998, Professor de Bruycker stated that these two laws represented important steps by the Moldavian authorities in the direction of installing institutions of regional and local democracy in that country, in conformity with the principles of the European Charter of Local Self-government (henceforth the Charter), which the Moldavian Parliament had signed and ratified in 1997. At the same time, he pointed to a number of aspects of the two laws, which required further clarification and improvement. In his second opinion, delivered in June 1999, on the basis of the texts finally adopted by the Moldavian Parliament, he remarked that many of these clarifications and improvements had been made by the Parliament, although there remained some outstanding matters to be dealt with, mainly concerning the constitutional status of the Autonomous Region of Gagauzia

The main innovations of the 1998 laws with respect to the previous system of local and regional self-government in Moldova were the replacement of the 37 districts (raions) by 10 regions (judets), the metropolitan region of the capital Chisinau and the granting of autonomous status to Gagauzia and the areas on the Left Bank of the Transnistria. The laws were also noteworthy for their direct incorporation of various provisions of the Charter. An attempt was made to create strong executives, independent of central government but directly accountable to the people, through the direct election of mayors. The Congress, in its Recommendations 38 (1998) and 84 (2000), gave its approval to the overall thrust of these reforms, in particular the creation of the ten judets and the other autonomous regions, which it regarded as being in conformity both the Charter and with the projected Charter of Regional Autonomy and corresponding to the general criteria of democratic regional government in western Europe.

In February 2001, the Moldavian Communist's Party achieved an overall majority in the Parliament and its leader also won the Presidency of the country. The new government emanating from these elections and the parliamentary majority supporting it decided to modify significantly the 1998 legislation by the adoption of the laws of the Republic of Moldova 764-XV on territorial organisation of 27 December 2001 (repealing Law 191-XIV of 12 November 1998) and 781-XV on local public administration of 28 December 2001 (modifying the Law 186-XV of 6 November 1998).

These laws abolished the newly established regions (judets) and the metropolitan region of Chisinau and restored the districts (raiony), although the number of the latter would be slightly less than under the old system (32 as opposed to 37). In this respect, it is significant that the chairman of the parliamentary committee responsible for making these changes, Mr Iovv, informed Mr Casagrande and Mr Mildon, Congress Rapporteurs visiting Moldova in October 2001, that it was the new authorities’ intention to restore a “vertical hierarchy” (la verticale du pouvoir) (CG/Bur (8) 95).

Other major changes introduced by the new laws were the abolition of the system of directly elected mayors. Under the new legislation the local councils will elect mayors. The district councils will, like the local councils, elect their presidents. However, a key change with regard to both mayors and district presidents is that they will also be functionaries of the state directly responsible to the central authorities. The district president will also take over most of the responsibilities of the prefect, although the proposed amendments are not very clear on the new role of the latter. The Moldavian authorities’ have justified these changes in the position of the mayors and district presidents by the principle of the “interaction of the representative and executive powers”. They claim that this will assist the functioning of local government in the country. Finally, the current Moldavian authorities have called anticipated local elections, which, by the nature of the case, would occur before the expiry of the mandate of the currently elected regional and local politicians. The associations representing the current regional and local authorities have claimed that the modified laws on local government and administration are in serious breach of both the Moldavian Constitution and the Charter, which Moldova has signed and ratified. In its decision No. 33-35 of 19 February 2002 the Constitutional Court of the Republic of Moldova considered that the early elections decided by the Moldavian authorities were not in accordance with the Constitution of Moldova. On this basis, these elections have been cancelled.

Concerning the other changes in the 1998 laws, the Congress has asked me, in my capacity as one of its independent experts, to make a study of the new laws and to deliver an opinion with regard to their conformity with the Charter. Before analysing in detail these changes, it is useful to distinguish between their substance and the procedures with which they have been adopted as both substance and procedure are covered by the Charter.

With regard to the procedure, there is a prima facie case that there have been serious breaches of the Charter. Art. 4, [6] of the Charter states that “Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly”. Art. 5 of the Charter states that “Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly be means of a referendum where this is permitted by statute”.

During the visit to Moldova by a Congress delegation in January 2002, the authorities admitted that the current local and regional authorities, as represented by their associations - The National League of the Association of Mayors, The Federation of Local and Regional Authorities and The Association for the Regional Development Through Local Self-Government - had not been consulted. The setting up of these associations, in conformity with Art. 10, [1] and [2] of the Charter, had been explicitly praised by the Congress in its Recommendations 38 (1998) and 84 (2000).

The Moldavian authorities, on the other hand, referred to “hundreds of thousands” of signatures reaching the parliament demanding the abolition of the regions. However, evidence of these signatures was not produced nor was it made clear how they were collected. It would seem that no referendums had been held among the populations concerned, even if this is allowed by the Constitution of the Republic of Moldova.

In order to analyse the substance of the 2001 Laws and to assess their conformity or otherwise with the Charter, it will be useful, in this Opinion, to follow the structure of the previous two Opinions delivered by Professor de Bruycker. This will make it easier to compare the evolution of the laws and to evaluate to what extent the 2001 versions constitute a significant break with those of 1998 and to what extent they are in conformity with the Charter.

II. OPINION ON THE LAW ON ADMINISTRATIVE SUBDIVISION OF THE TERRITORY

The Charter does not require those countries, which have signed and ratified it to adopt any particular form of regional and local government. Furthermore, local autonomy does not mean independence and the Charter recognizes the right of each state to preserve its territorial integrity. Each state is free to organise its system of territorial government and west European states have a variety of systems. Nevertheless, the Charter, aware that regional and local democracy are essential elements of democracy in general, advocates the adoption and implementation of a number of principles and practices which it regards as enshrining this aspect of democracy. The two Opinions by Professor de Bruycker and the two Congress Recommendations made clear that the 1998 Laws largely respected these principles of regional and local democracy particularly through the abolition of the 37 districts (raiony) and the setting up of the ten regions (judetsy), the metropolitan region of Chisinau and the other autonomous regions, even if there was still room for improvement in certain details of the laws.

The law 764 - XV of 27 December 2001 has significantly modified law 191-XIV of 12 November 1998 by abolishing the judets and restoring the raions. There is a terminological problem here as the same word “district” is used in both the English and French translations to describe these two quite different levels of sub-national government but there is little doubt that the 2001 law is restoring the old system of districts (raions). In its decision on the respect of the Constitution by this law (Official Journal No. 40 - 42 of 21 March 2001) the Constitutional Court of Moldova confirmed the conformity of the districts (raions) to the Constitution provisions.

The authorities have justified this restoration on the grounds that the 1998 reforms, in breach of the Charter, were adopted without consultation of the population, produced no positive results, and were excessively expensive and contravened Art. 4 [3] of the Charter by creating a gap between the population and the state.

This states that “Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy”. It seems to me that using this article to justify the restoration of the old districts is a fundamental misunderstanding of its meaning.

The districts, as will be clear from the analysis of Law 781-XV of 2001 on Local Public Administration seem to be primarily a means by which the central government can reach into local affairs. The principle underlying Art. 4, [3], however, is the exact opposite of this, that is, it is based on the principle of subsidiarity, which, in its usual meaning, states that no decision should be taken by a higher authority which can taken by a lower one. Furthermore, subsidiarity allocates particular tasks to particular levels of government so that certain tasks may be attributed to a regional level if smaller and more local units are unable to carry these out for reasons of efficiency or economy. This necessitates a fairly clear division of competences between the different levels of government. However, in no country of western Europe, including the regionalised unitary states of France, Italy and Spain (that is those states with which Moldova is most similar), has it been suggested that the existence of regional governments has been a barrier between the population and the state. On the contrary, these previously centralised states have introduced such regions precisely as a means of bring public administration closer to the citizen as well as to ensure the efficiency and economy of certain public policy sectors which are best carried out at that level. It was for these reasons that the Congress congratulated the framers of the 1998 Law in its Recommendations 38 and 84.

Although the wording of the 2001 Law is almost identical to that of 1998, the abolition of the judets and the metropolitan region of Chisinau, the restoration of the districts and the interpretation given by the Moldavian authorities based on the principles of “vertical hierarchy” (“la verticale du pouvoir”) and “the interaction of the representative and executive powers” (“l’interaction du pouvoir représentative et le pouvoir exécutive”) make clear that the new law represents a step backwards in Moldova’s transition to democracy and are difficult to reconcile with the provisions of the Charter.

The principle of “vertical hierarchy” seems to be in conflict with Art. 3 (1) of the Charter, which states that “Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population”. With regard to “the interaction of representative and executive powers”, it is difficult to reconcile this with Art. 3 [2] of the Charter which states that “This right [of local self-government] shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them”. The executive power referred to in “the interaction of representative and executive power” underlying the new Moldavian legislation refers to the executive power of the central state of which the mayors and the presidents of the new districts are henceforth functionaries.

As already mentioned, in order to provide a complete judgement on the conformity of this law with the Charter it is worthwhile examining its provisions in relation to Law 781-XV on Local Public Administration. In fact this law clearly indicates the legal meaning, the political orientation and the modus operandi of Law 764-XV on Territorial Organisation. With this in mind, the final judgement on Law 764-XV will largely rely on the judgement concerning Law 781-XV.

III OPINION ON THE LAW ON LOCAL PUBLIC ADMINISTRATION

These reservations are reinforced by a detailed analysis of the Law 781-XV of 2001 on Local Public Administration. Professor de Bruycker’s opinion on the 1998 Law was that it was “a step in the right direction and a commendable effort to put the principles of the European Charter of Local Self-Government into practice”, while still pointing to some areas in need of improvement. The 2001 Law, however, introduces major changes into the 1998 version. These changes are outlined in the amendments to Art. 1: the replacement of the region (judets) by the district (raion); the change in the method of electing the mayors of the lower level (villages and towns) from direct election by the population to election by the councils; the replacement of the prefect by the “president of the executive of the district council”, who is also elected by the district council; the change in the status of both mayors and presidents of the district councils who are both elected representatives and functionaries of the central state; the words déconcentrés and décentralisés (see the French translation of the Law)are suppressed from the phrases “services publics déconcentrés” and “services publics décentralisés”. Other changes concerning the distribution of competences across the two levels of local government. There is also less clarity with regard to the local finance regime.

With regard to local authorities (level 1) in particular:

The key changes here are: the mode of election of the mayor, previously directly elected by the people, now elected from within the council (Art. 1); the legal position of the mayor and deputy mayors, who become state functionaries and whose activities are regulated by the Law on Public Service (Art. 33 [3]); the means by which a council may be suspended by Parliament, which may now occur, under certain conditions, on a proposal by the mayor, the president of the district, or the Government (Art. 30 [2]).

The switch from direct election by the population to election by the council is not necessarily in violation of the Charter, although the general tendency in western Europe has been towards direct elections as a mean of separating the representative and executive branches and increasing the accountability of the latter to the people rather than to the central state.

The Law 781-XV by making the mayor and deputy mayors state functionaries, based on the principles of vertical hierarchy and the interaction of the representative and executive powers, where the latter in fact means the central executive, risks seriously compromising the autonomy of the local authorities. This impression is compounded by the suppression of the terms “décentralisés” and “déconcentrés” from the phrase “services publics” in the Law. Art. 109 [1] of the Moldavian Constitution, states that “Public administration in the administrative/territorial units is based on the principles of local autonomy, of the decentralization of public services …”, and [2] states that “The concept of autonomy encompasses both the organization and functioning of local public administration, as well as the management of the communities represented by that administration”. Taken together, the amendments to the Law seem to lead in the opposite direction of such decentralisation and local autonomy. Art. 8 [2] of the Charter states: “Any administrative supervision of the activities of local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities”. Art. 7, [1] of the Charter also states that “The conditions of office of local elected representatives shall provide for free exercise of their functions”. The hybrid position of the mayors and vice-mayors being both representatives and functionaries, based on the notions of vertical hierarchy and the interaction of representative and executive powers, would seem to violate the principle enunciated in these two articles, since the mayors and vice-mayors, while representing the council will also be under the control of their superiors in the administrative hierarchy. The latter, presumably, will be able to exercise administrative supervision over them as the mayor will be responsible for administering the “services publics [no longer décentralisés or déconcentrés] constitués dans les unités administratives territoriales de premier niveau” (Art. 1).

In its decision of 14 March 2002 (Official Journal No. 46 - 48 of 4 April 2002) the Constitutional Court of Moldova declared this double role of the Chairman of the Districts Executive Committees as unconstitutional in relation to Arts. 112 and 113 of the Constitution. However, in its decision the Court did not mention the double role of mayors, which is comparable to that of the Chairman of the Districts Executive Committees. On the contrary, the Court stressed that the right given to district authorities to interfere in the affairs of municipalities (through the destitution of the mayor and the vice-mayors) violates Art. 3 of the Charter and also the Constitution.

Similar to the previous point it is worrying to find out that following the law in question, in some cases, mayors (and their deputies) can be dismissed by higher authorities without any judicial decision. This was also sanctioned by the Constitutional Court which, by making reference to Art. 3 of the Charter and to Arts. 109 and 113 of the Constitution, established that citizens alone have the right to dismiss their mayors. With this in mind, the Court declared unconstitutional Arts. 36 [3] and 41 [3] of Law 781-XV.

The change in the means by which a council may be suspended is also worrying. This was covered by Art. 30 [2] of the 1998 Law which, in the French translation, states that “La suspension de l’activité du conseil local s’effectue par le parlement à la proposition motivée du préfet, basée sur la décision définitive d l’instance judiciaire”. The 2001 Law changes this to read that the Parliament may suspend the council on the basis of a proposal from the mayor, the district president or the Government. There is no reference to a decision by a judicial authority. This seems to be in breach of Art. 11 of the Charter, which states that, “Local authorities shall have the right to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation”. It is difficult to see how this principle can be applied if the council can be suspended on proposals from the mayor, the district president or the Government, all in a hierarchical relationship with each other, and in the absence of any judicial safeguards.

A change also occurs in Art. 11 of the 2001 Law where the reference to the “droit à instituer des impôts et taxes locales” of the 1998 version is omitted. Art. 9 [3] of the Charter states that “Part at least of the financial resources shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate”. The original version of Art. 11 in the 1998 Law was clearly in accordance with this principle and it is regrettable that the reference to this right should be omitted from the 2001 version. Art. 18 [2] (f) of the 1998 Law, dealing with the powers of the local council, also makes reference to local taxation and states simply that one of these powers is “établir les impôts et les taxes locales, dans les conditions de la loi”. The 2001 Law, Art. 18 [2] (i) changes this to read: “décide la mise en application et la modification, dans les limites de ses compétences, des quotas, du mode et des délais de paiement des taxes locales, ainsi que l’octroi des facilités au cours de l’année ficale, effectue les modifications respectives dans le budget local”. It is less clear in this rather convoluted sentence than in the 1998 Law that it is the local council which has the right to fix local taxes and charges or whether these are part of the central state budget.

Professor de Bruycker, in his Opinion on the 1998 Law, remarked that there was some overlapping of powers between the lower and intermediary levels of government although in second Opinion, he noted an improvement in the amended version of this Law. The 2001 Law is a serious regression in this regard with an even greater confusion of powers between the two levels than was the case in the 1998 Law. This constitutes a violation of Art. 4 [4] of the Charter, which states that “Powers given to local authorities shall normally be full and exclusive. They may not be undermined by another, central or regional, authority except as provided for by the law”. The following are some examples of this confusion of powers between the two levels:

* The 1998 Law (French translation), distinguishes between “l’aménagement du territoire, les problèmes de l’urbanisme, la gestion des localités et des territoires adminstratifs”, which is a competence of the local level (Art. 13 [1] (a) ) and “le développement social-économique du territoire”, which is a competence of the regional level (Art. 13 [2] (a)) . In effect, the competence of socio-economic development of the territory is a more general one and, following the tendency in most west European countries, is appropriately exercised at the regional level, while more specific or localised programmes are exercised at the lower level. The 2001 Law attributes exactly the same competence - “le développement socio-économique” - to both levels.

* The same confusion of responsibilities applies to road construction and maintenance. While not entirely satisfactory, the 1998 Law (French translation) distinguished between “la voirie …. et la circulation routière … dans les limites des localités”, the responsibility of the lower level (Art. 13 [1] (b)) from the “routes d’importance” at the level of the judets and Chisinau (Art. 13 [2] (b)). The 2001 Law attributes to the second level, the district, responsibility for “la construction et l’entretien des routes locales”, while retaining the 1998 phraseology for the lower level. This could be construed to mean that the district level might intervene in this sector also at the local level.

* In the 1998 Law there is a clear distinction between the attribution of responsibilities for education between the local and the regional levels: the lower level is responsible for “l’assurance du fonctionnement des institutions d’éducation, y compris les écoles primaires séparées, les maternelles et les crèches” (Art. 13 [1] (i)); the regional level is responsible for “l’enseignement secondaire général et secondaire professionel” (Art. 13 [2] (n)). The 2001 Law, by contrast, attributes almost exactly the same functions to the lower and higher levels in its Arts. 13 [1] (h) and 13 [2] (i). The wording of the two articles is identical except for the addition of the phrase “la protection des jeunes familles” to the attributions of the district. This is clearly against the principles of the Charter, Art. 4, [4] as well as out of line with the practice of most west European states which assign different levels of education to different levels, with responsibility for more advanced levels being attributed to higher levels of authority.

The provision in Art. 49 [3] of the 1998 Law, which prohibited the secretary of the local council being a member of a political party or other socio-political organisation is suppressed in the 2001 Law. In the 1998 version, the secretary was appointed by the council on the basis of a proposal from the mayor and following a public competition. The 2001 Law, Art. 50 [1] stipulates that his nomination will now follow the same process as the election of deputy mayors as allowed for in Art. 41. This means he will be appointed by the council rather than on the basis of a public competition. The previous reference to “stabilité dans la fonction” of the secretary in the 1998 Law, Art. 50 [2] is suppressed in the new law. These changes, taken together, signify a reduction in the independence of the council secretary and increase the possibility of his falling under the control of political parties or socio-political organisations. It is also regrettable that the reference to stability has been removed as the council secretary should represent a continuity within the council whatever the changes in the political complexion of the council might be.

The net effect of these confusions of responsibilities, besides weakening the effectiveness of the particular policy areas and infringing the principle of subsidiarity which is the basis of Art. 4 [3] of the Charter, will be to strengthen the grip of the higher over the lower levels of government, thus leading to increased centralisation rather than greater autonomy for the lower levels. The 1998 Law was by no means perfect in this regard, but the amended version did move in the right direction of attributing “full and exclusive powers” to the lower level as demanded by the principles of the Charter. The 2001 Law, Art. 50 , by contrast, is in net regression in this regard.

With regard to districts (level 2) in particular

We have already made clear that, although the change from regions to districts may be compatible with the principles of the Charter in the sense that each country is free to choose its own system of local and regional government, in this particular case, combined with the other changes that have been noted, the return to the districts by the Moldavian authorities has a distinctively centralising aspect. The attempts by the Moldavian authorities to justify this change by reference to the Charter are unconvincing. Other justifications, on the grounds of tackling the problems of economic crisis, crime and corruption are, properly speaking political and fall outside the scope of this Opinion, which is concerned with the juridical aspects of the changes and their conformity or otherwise with the Charter.

Much of what has been said with regard to the local authorities applies also to the districts:

The “president of the executive committee of the district council” (henceforth “district president”) has a status similar to that of the mayor, in that he is elected by the council (Art. 1) and is its representative (Art. 66, [2]) but is also a public functionary (Art. 66, [4]). It is also worrying that he replaces the prefect as the “représentant du Gouvernement sur le territoire” (Art. 66, [8]). It is unclear in the new legislation what will be the future role of the prefect. There is thus the same ambiguity with regard to the autonomy of this level of government as exists at the local level and with regard to the position of the mayor. Taking into account the same principles of vertical hierarchy and the interaction of representative and executive powers, it must be concluded that the ambiguity is resolved in the direction of increased centralisation rather than autonomy.

The concern expressed in relation to the possibility that mayors and their deputies can be dismissed by the district authorities without any judicial decision, also refers to the right of the parliament to dismiss the district authorities. In this respect, it is worthwhile observing that the Constitutional Court declared that Art. 63 [3] (which gives the right to the Council and Parliament to dismiss the Chairman, Vice-Chairman and Secretary of the districts) violates Arts. 6, 7 and 11 of the Charter and Art. 6, 66 and 109 paragraphs 1 and 2 of the Constitution.

There is the same lack of clarity with regard to the tax-raising powers of the district council an attribution which was contained in 1998, Art. 59 n but which has disappeared from 2001, Art. 59. Chapter X of the 1998 Law dealt with the “Administration of Public Finances” and Art. 92 [1] within this chapter explicitly states that at least part of the revenues of the local and regional authorities would come from local taxes fixed by them. I assume that this Chapter will remain in the 2001. Would the Moldavian authorities confirm that this will be the case?

The same changes outlined above with regard to the position of the secretary of the local council have been introduced with regard to the secretary of the district council and the critical remarks made above apply here as well.

With regard to Gagauzia in particular

The 2001 law makes no explicit reference to Gagauzia that is different from the 1998 version but clearly the above amendments to the 1998 Law, if also applicable to Gagauzia will have serious implications for the autonomy of that region. This is something that needs clarification from the Moldavian authorities.

On the occasion of the official visits of the Congress Rapporteurs the Moldavian authorities declared that the autonomy of Gagauzia will not be affected by these laws.

In this respect, it should be observed that a draft law modifying the Constitution in relation to Gagauzia (prepared by an Ad hoc state committee) was recently examined by the Venice Commission (Consolidated Opinion on the Law on Modification and Addition in the Constitution of the Republic of Moldova, doc. CDL (2002) 40, 101/2001).

In general, by this text the Venice Commission expresses a positive judgement on the draft law in question. However, it also refers to a number of criticisms indicating possible improvements.

The Venice Commission opinion takes into account the opinion expressed by Mr Casagrande and Mr Mildon, CLARE Rapporteurs on Local and Regional Democracy in Moldova.

APPENDIX 8

Congrès des Pouvoirs Locaux et Régionaux de l'Europe

Congress of Local and Regional Authorities of Europe

Strasbourg, 15 March 2002

CG/INST (8) 50

INSTITUTIONAL COMMITTEE

Draft law on modification and addition to the Constitution of the Republic of Moldova concerning the Gagauzia status.

The Parliament is adopting the present constitutional law.

General Article - the Constitution of the Republic of Moldova, adopted on 29 July 1994 ("Monitorul Oficial", 1994, No. 1) with the further modifications, is modified as follows:

1. Article 73 will have the following content:

"Article 73

Legislative Initiative

The right to legislative initiative belongs to members of Parliament, the President of the Republic of Moldova, Government, the National Assembly of the territorial autonomy of Gagauzia".

1. Chapter VIII will be made-up of two sections.

After the Chapter's title there are the words "Section I The Central Public Administration". After Article 108 there are the words "Section II The Local Public Administration".

2. Article 110 will have the following content:

"Article 110

Administrative-Territorial Organisation

1) The territory of the Republic of Moldova is organised, under an administrative aspect, in villages, cities and towns, regions and territorial autonomy Gagauzia.

2) Districts on the left bank of the Dniester can be attributed special forms and conditions of autonomy according to the special status adopted through a special organic law.

3) The status of the capital of the Republic of Moldova - Chisinau municipality is regulated by the organic law".

3. Article 111 will have the following content:

"Article 111

Territorial Autonomy Authorities

1) The territorial autonomies have representative and executive bodies according to the law.

2) The supreme officials of the territorial autonomies are elected according to the special organic laws, which determine their status.

3) Control over the observance of the Constitution and Legislation of the Republic of Moldova is carried out by Government within the law's framework.

4. After Article 111 there is a new Article 111 - 1 with the following content:

"Article 111 - 1

Territorial Autonomy Gagauzia

1) Gagauzia is a territorial autonomy with special status, which, as a form of gagauzian auto-determination, is an integral and inalienable part of the Republic of Moldova and is solving its political development, economic and cultural problems independently within the law's framework, within its competence limits, in the entire population's interest.

2) Within the territory of the territorial autonomy Gagauzia, all rights and freedoms stipulated in the Constitution and legislation of the Republic of Moldova are guaranteed.

3) Land, subterranean and water resources, flora and fauna, other natural resources which are situated on the territory of the territorial autonomy Gagauzia, are the property of the people of the Republic of Moldova and, at the same time, are an economic basis of the territorial autonomy Gagauzia.

4) The budget of the territorial autonomy Gagauzia is formed according to the norms stipulated in special organic law, which determines the status of Gagauzia.

5) If the Republic of Moldova loses its status as an independent state, the population of Gagauzia has the right of auto-determination.

6) The improvement of the legislation of the Republic of Moldova involves the improvement of the special organic law on the special status of the territorial autonomy Gagauzia, which modification is realised with the vote of three fifths of the whole number of elected members of Parliament.

President of the Parliament

ANNEXE 9

Strasbourg, 12 March 2002

CDL (2002) 40

191 / 2001

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

Consolidated opinion on the law on modification and addition in the Constitution of the Republic of Moldova

based on comments by:

Mr James HAMILTON (Member, Ireland)

Mr Kaarlo TUORI (Member, Finland)

Mr Joan VINTRO (Expert, Spain)

I. Introduction

1. On 10 December 2001 the Moldovan authorities submitted a request to the Venice Commission to give an opinion on the draft law ‘On changes and amendments to the Constitution of the Republic of Moldova’ with regard to the status of the Gagauz autonomy27.

2. On the invitation of the Moldovan authorities a group of Rapporteurs and two members of the Secretariat of the Venice Commission visited Moldova from 11 to 14 February 2002. The purpose of the visit was to meet representatives of the Moldovan and Gagauz authorities and to discuss the draft law on constitutional changes relating to autonomous regions within the Republic of Moldova, with particular reference to the territorial autonomy of Gagauzia. The following text has been established on the basis of comments given by the Rapporteurs of the Venice Commission, Messrs J. Hamilton, K. Tuori and J. Vintro.

3. In order to place the proposal in its context it is necessary to refer to certain current legal provisions concerning the autonomous region of Gagauzia, their place in the Moldovan legal order and certain key provisions of the Constitution of Moldova.

II. Current legislative framework

A. The Constitution of the Republic of Moldova

4. Article 1 of the Constitution establishes the Republic of Moldova as a sovereign, independent, unitary and indivisible state. Article 2 provides that national sovereignty resides with the people, who shall exercise it directly and through its representative bodies in the ways provided for by the Constitution.

5. Article 60 provides that Parliament is the sole legislative authority of the State in the Republic of Moldova. Article 66 provides that among the basic powers of Parliament is the power “to … ensure the legislative unity of regulations throughout the country”, “to approve and control the national budget” and “to suspend the activity of local institutions of public administration under the law”.

6. The Constitution is, by virtue of Article 7, the supreme law of the country. No laws or other legal acts and regulations in contradiction with its provisions may have any legal power. Article 135 empowers the Constitutional Court to enforce constitutional control over laws and under Article 140 laws become null and void from the moment the Constitutional Court decides to that effect.

7. Article 72 classifies the laws into three categories: constitutional, organic and ordinary. Constitutional laws are aimed at revising the Constitution. The revision, under Article 141, must be initiated by popular initiative, by one-third of the Parliament, or by the Government. A revision may not be allowed if it results in the suppression of fundamental rights or their guarantees (Article 142 (2)). The Constitutional Court must approve the initiative for revision. The constitutional law must be approved by a two-thirds majority in Parliament not earlier than six months after it is initiated but not later than one year after, at which time the initiative, if not by then approved, lapses (Article 143). In the case of revisions regarding the sovereignty, independence and unity of the State, or its permanent neutrality, approval of the constitutional law in a popular referendum is also required (Article 142 (1)).

8. Article 111 of the Constitution provides that special forms of autonomy, according to special statutory provisions of organic law, may be granted to (a) “the places on the left bank of the Nistru river” (Transdniestria) and (b) “certain other places in the south of the Republic of Moldova” (this refers to Gagauzia). Article 111 goes on to provide that “amendments to the organic laws establishing special status” for these places require a three-fifths majority in Parliament. Article 111.2 implicitly provides for “special” organic laws regulating the status of autonomies.

B. The Law on the Special Legal Status of Gagauzia

9. Gagauzia was established as an autonomous territorial entity by an organic law of 23 December 1994 (CDL (95) 11) (hereafter referred to as the 1994 Law).

10. The 1994 Law establishes Gagauzia as comprising localities where Gagauzes constitute more than 50% of the population, together with other localities where a majority in a local referendum wish to be included in Gagauzia. (Article 5). The 1994 Law provides that “land, mineral deposits, water flora and fauna, other natural resources and movable and immovable property situated in Gagauzia shall be the property of the people of the Republic of Moldova whilst constituting the economic basis of Gagauzia”.

11. Article 1 (4) of the 1994 Law provides that in the event of a change in the status of Moldova as an independent State, the people of Gagauzia shall have the right to external self-determination.

12. The 1994 Law establishes a representative body in Gagauzia (“the People’s Assembly”) with power to adopt legal Acts within the limit of its competence (Article 7). It can adopt legal local laws by a simple majority (Article 11 (1)) in the fields of science, culture and education; housing and public services and utilities; health care, physical culture and sport; local budgetary, financial and fiscal activities; the economy and ecology; and labour relations and social security (Article 12 (2)).

13. The People’s Assembly also has powers in relation to regional planning, boundaries of regions, towns and villages, place-names, local elections and referenda, symbols and awards (Article 12 (3)). It has power to adopt, and has adopted, a legal code (Article 11 (2)).

14. The texts do not make it clear what the respective powers of the People’s Assembly and the national Parliament to make laws in these areas are, and what place such laws have in the hierarchy of norms. It would seem, from answers given to the delegation in the course of discussions, that the People’s Assembly’s competence to make laws in the area where it is empowered to legislate are not exclusive, that is, that laws of the national Parliament may continue to apply, but that in case of conflict that laws of the People’s Assembly prevail.

15. The People’s Assembly can ask the Constitutional Court to declare invalid legal Acts of the legislative and executive authorities of the Republic of Moldova, which infringe the powers of Gagauzia (Article 12 (3)(i)). Legal acts of Gagauzia that contradict the Constitution may also be declared invalid (Article 12 (6)), but the 1994 Law sets out no special procedure to regulate applications to do so. The initiative to bring such a matter before the Court is determined by the law regarding the Constitutional Court in accordance with Article 135 (2) of the Constitution of Moldova.

16. The 1994 Law also provides for an executive Head (Bashkan) of Gagauzia, and an Executive Committee. The Executive Committee has responsibility, inter alia, for local budgetary and financial arrangements, local taxation, and drawing up a budget. By Article 18 the budget is to consist of such receipts as shall be determined by national legislation and by the People’s Assembly.

17. The 1994 Law also established a Court of Gagauzia as an appellate court and as a court of first instance for complicated civil, administrative and criminal cases (Article 20). Gagauzia has its own Procurator and its own Departments of Justice, National Security and the Interior, whose heads are appointed and dismissed by their national counterparts on a proposal from the People’s Assembly or the Bashkan with the approval of the People’s Assembly. Responsibility for the appointment and dismissal of senior police officers is shared between the central authorities and Gagauzia.

18. Taking into account the current legislative provisions and the consensus of all parties that constitutional changes should be made on the basis of the 1994 Law and in full respect of constitutional provisions, it can be presumed that constitutional amendments should be drafted on the following principles and criteria:

a) compatibility between the unitary character of the Republic of Moldova and the recognition of territorial autonomies;

b) political, rather than administrative, nature of territorial autonomies such as Gagauzia;

c) possibility to use special symbols of the autonomies and a special status (official) of other language(s) in use on the territory alongside the State and national languages established by the Constitution of Moldova;

d) special organic law is the legal basis for the functioning of the autonomy; Law of 1994 can be already considered as such law in the light of Article 111.2 (see p.10);

e) “special organic law” should be distinguished from organic laws on both material and formal levels28;

f) the Constitution of Moldova and special organic laws represent a constitutional basis, which determines the development of all other norms – no piece of legislation or other normative act can be in conflict with the provisions of the Constitution and the special organic law; organic and ordinary laws can be implemented in Gagauzia if they do not contradict the Constitution and provisions of the special law on the status of Gagauzia;

g) The Constitutional court of the Republic of Moldova shall settle all constitutional disputes between the central authorities and the autonomies.

III. The Proposed Constitutional Law

A. The current situation with regard of the status of the Gagauz autonomy.

19. It is important to emphasis that both the Moldovan authorities whom the Commission delegation met and the Gagauzian representatives who were critical of the proposed law expressed themselves generally satisfied with the workings of Gagauzian autonomy as provided for in the provisions of the 1994 Law. The question therefore arises whether the proposed constitutional law is necessary and whether it might not be wiser to leave well alone given that the present system appears to have worked now for eight years. The present proposal may run the risk of upsetting the balance with a constitutional law that has proved to be controversial.

20. The answer, which was given to this question by supporters of the proposal, is that a constitutional underpinning of the existing arrangements is both desirable and necessary. It was suggested that aspects of the 1994 Law might be in conflict with the Constitution. For example, the Constitutional Court abrogated one provision of the 1994 Law, Article 20 (2), which provided for the nomination of judges in Gagauzia on the proposal of the Popular Assembly29.

21. The establishment of an autonomous region in Gagauzia falls far short of converting Moldova from a unitary state to a federal one. Only one relatively small part of Moldova, with a population of 150,000 out of a total population of 4,300,000, is comprised in the autonomous region, and there are no other subordinate legislatures throughout the country as a whole. The possibility of autonomy as a solution to the Transnistrian question has also been canvassed and is expressly envisaged in the Constitution. There are other unitary states, which have established regions with autonomous powers without moving to a fully federal system, for example, Spain, Portugal30 and the United Kingdom. There is a debate on such constitutional transformation in many other states. There is logic to maintaining a system of a unitary state with a number of autonomous regions rather than a full-blown federal system where the state is relatively small, the autonomous region or regions comprise only a small part of the whole and there is no political demand for autonomy in the other parts of the country. Such an asymmetrical solution, however, runs the risk that other parts of the country may resent the inhabitants of the autonomous region continuing to exercise their share of power over the affairs of the state as a whole while maintaining a nearly exclusive control their own affairs, a problem which is avoided in fully federal systems. In view of the disparity of size between Gagauzia and Moldova as a whole, however, this seems to be a somewhat theoretical consideration.

22. However, the extent of the powers conferred on the Gagauzian autonomous institutions is very striking. The range of matters on which the People’s Assembly can legislate is almost fully comprehensive. It is difficult to see any important area, which is excluded from their competence apart from defence and foreign policy. Even here the 1994 Law contains an express right for the People’s Assembly to participate in the implementation not only of the home policies but also the foreign policies of the Republic of Moldova with regard to matters affecting the interests of Gagauzia (Article 12 (3)(b)). The range of executive responsibilities is equally comprehensive. In addition to budgetary powers, the Executive Committee can regulate property relations, management of the economy, social and cultural systems, social security, remuneration, local taxation, environmental protection, and the use of natural resources. It has responsibility for the implementation of legal acts of the People’s Assembly which, as already seen, can cover a comprehensive range which includes education, housing, public services and utility, health and labour relations.

23. There are, therefore, aspects of the current arrangements under the 1994 Law, which are difficult to square with all of the constitutional provisions, notwithstanding that the Constitution, in Articles 72 and 111, expressly envisaged the creation of local autonomous institutions. It is difficult, for example, to see that the creation of a legislature in Gagauzia whose laws are capable of ousting the national laws is consistent with Article 60 in its conferring of sole legislative competence on the national Parliament, or with Article 66 which empowers Parliament to ensure legislative unity of regulations throughout the country.

24. More fundamentally, if the solution arrived at in 1994 is intended to represent a lasting solution to the problem of Gagauzian autonomy and self-determination, it would represent a better protection for the legal order established by the 1994 Law if the essential features of that law (and not merely the right to make such a law) were reflected in the Constitution. Unless and until this is done the 1994 Law remains vulnerable to further incursion by decisions of the Constitutional Court or to being amended or abrogated by a three-fifths majority in Parliament.

25. It seems, therefore, that there are good reasons why the 1994 Law should be given a constitutional underpinning, both to avoid any question about its compatibility with the constitutional framework and possibly to avoid the essential features of it being altered without the consent of the people of the autonomous region.

26. From the beginning of the process of drafting the amendments in 2001 there were two different approaches to the future provisions of the Constitution with regard to Gagauzia. One draft was presented by a special Commission on constitutional amendments created by the parliament of Moldova and comprising a number of parliamentarians, state officials and representatives of Gagauzia. This draft will be examined in the next part of this opinion.

27. The second proposal of constitutional amendments had been drafted by a group of members of the Popular Assembly of Gagauzia and was presented during the visit of the delegation of the Venice Commission to Chisinau in February 2002. This draft law aims at transforming Moldova into a federative state with the present Republic of Moldova and Gagauzia as its constitutive (and equal) entities. As such, the draft law can be considered an unrealistic basis for any further discussions. Given the various national and ethnic minorities in Moldova, as well as the still unsolved problem of Transnistria, developments in a federative direction in the relations between the Republic of Moldova could also have disruptive effects with regard to the entire state structure of the country.

B. Law on modification and addition in the Constitution of the Republic of Moldova

28. When analysing the law it should be pointed out that it contains a number of positive features. These could be identified principally as follows:

a) The clarification of Article 73 is useful and important and has been generally supported. According to the proposed Article 73, the Popular Assembly of Gagauzia would be granted the right to legislative initiatives. As it is the case in most countries with territorial autonomies the final decision on the initiative belongs to the national parliament. If the intended amendments are to cover not only a status of Gagauzia but autonomies in general it could be completed with the phrase ‘(Gagauzia) and other legislative Assemblies of autonomies’.

b) The amendment of Article 110 to make specific provision for the Gagauzian autonomy is a positive step.

c) Similarly, the idea of the new Article 111-1, which makes detailed provision for Gagauzian autonomy, setting out a number of key provisions of the 1994 Law in the Constitution, is a positive step. In particular, the giving of constitutional expression in paragraph (5) to the right of self-determination of Gagauzia in the event of a change of status of Moldova is important, as is the recognition in paragraph (1) of the existing recognition for the self-determination of Gagauzia as autonomy within the Republic of Moldova.

29. There are, however, a number of shortcomings in the draft which could be identified as follows:

a. Articles 110(1), 111(2), 111-1(4) and 111-1(6) refer to “special organic laws” which would apparently constitute a new hierarchical level between the Constitution and “ordinary” organic laws in the legal order of Moldova. If such a new hierarchical level is introduced, provisions on it should also be added to Title Three, Chapter IV, Section Three of the Constitution; to Article 72 (Classification of Laws) and to Article 74 (the Passing of Laws and Resolutions). The hierarchy of norms should be as clear as possible.

Article 111

b. The proposed new Article 111(1) makes no reference to the existence of legislative bodies since its wording is “the territorial autonomies have representative and executive bodies according to the law”. The term “representative” could be replaced by “legislative”. The constitutional change should underline rather political than purely administrative character of the autonomy. The text needs to make specific provision for legislative powers and to address the possible conflict with the existing Articles 60 (Parliament as the Supreme Representative Body and Legislative authority) and 66 (Basic Powers). If the scope of the proposed modification of the Constitution is upheld, Articles 60 and 66 should be modified in the light of the law of 1994. The paragraph 1 of this Article should also mention judicial bodies31.

c. Article 111 (2) should provide for the legislative nature of the assembly of the autonomy and the democratic character of territorial institutions. It could provide that a territorial autonomy has a legislative assembly and executive bodies democratically elected in accordance with the Constitution and the special organic law.

d. The reference in the proposed Article 111(3) that the control over the observance of the Constitution and legislation of the Republic of Moldova is being carried out by Government is a source of concern. This seems more appropriately to be a judicial function: to the Constitutional court and the judiciary32.

Article 111-1

e. The meaning of the expression “within the law’s framework” is unclear in Article 111-1(1). It seems that such changes would continue to have to be made by an organic law. As has already been mentioned, the references to a “special” organic law seem to refer to the current Article 111(2), which requires a three-fifths majority to amend organic laws concerning autonomy, but since there is otherwise no reference to “special” organic laws it would be desirable that this be clarified in the text. In addition, the effect of putting certain provisions in the Constitution will be to further entrench them since amendments to the Constitution require a two-thirds majority. It is therefore a safeguard for the Gagauzian autonomy that the key provisions of the 1994 Law should appear in the Constitution.

f. The proposed Article 111-1 (3) concerning natural resources differs from the text of the 1994 Law. It is not clear why this should be so.

g. According to the proposed Article 111-1(4), the budgetary process in Gagauzia shall be regulated through the special organic law determining the status of Gagauzia. This is the only issue, which Art 111-1 on “the Territorial Autonomy Gagauzia” explicitly requires to be regulated through the special organic law. It is essential for the constitutional protection of the autonomy of Gagauzia that the issues, which belong to the exclusive scope of regulation of the special organic law, are enumerated in the Constitution.

h. It may be appropriate to give some consideration as to how future amendments to the system of Gagauzian autonomy should be made. The proposed Article 111-1(6) contains a provision on the qualified majority required for changes and amendments to the special organic law on Gagauzia. A question in need of further consideration is whether the appropriate location for such a provision in this Article or in Chapter Three, Section Three of the Constitution. For example, in Finland changes and amendments to the Law on the Autonomy of the Aland Islands require not only a qualified majority in the national parliament but also the consent of the Legislative Assembly of Aland. The constitutional guarantees for the autonomy of Gagauzia would be further enhanced by a corresponding requirement of the consent of the Gagauz Popular Assembly for changes and amendments to the (special) organic law on the Special Legal Status of Gagauzia. In order to make the provision of this paragraph more precise it would be more appropriate to substitute in first line “the improvement of legislation” by “improvement of the autonomy”.

Other observations

In order to facilitate control through the Constitutional Court, the appropriate Moldovan authority, such as the Government of the Republic of Moldova or the Prime Minister, should have the power to submit to the Court any legal act adopted by the Popular Assembly of Gagauzia which the authority considers to exceed the powers of the Assembly. At present, the law on the Special Legal Status of Gagauzia only gives the Popular Assembly of Gagauzia the power to submit to the Constitutional Court legal acts adopted by the legislative or executive authorities of the Republic of Moldova which it considers to infringe the autonomous powers of Gagauzia (Article 12(3), par. i). Article 135 (1) of the Constitution of Moldova could be amended with corresponding provisions giving the power to central authorities to challenge the constitutionality of the normative acts of the autonomy.

IV. Conclusion

The proposed draft law on constitutional amendments concerning Gagauzia is a positive development since it recognises the existence of the autonomy and determines its competences at the level of the Constitution of the Republic of Moldova. Nevertheless the draft law has a number of shortcomings that should be studied by the parties involved in the process. The Venice Commission welcomes the willingness of the Moldovan and Gagauz authorities to further co-operate on this matter and hopes that the above opinion will be taken into account in the future work on the constitutional amendments.

APPENDIX 10

PROGRAMME

of the Congress delegation's official visit to the Republic of Moldova

18-20 February 2002

APPENDIX 11

1311-149 from 11.04.2002

According to the agreement between the Head of the Government of the Republic of Moldova and the Mission of The Congress of Local and Regional Authorities of Europe following its visit to Chisinau from 4 April 2002, we are sending you enclosed the Commentary on some points of the Draft Opinion worked out by Professor John Loughlin, expert of the Congress of Local and Regional Authorities of Europe.

Respectfully,

Prime Minister of Vasile TARLEV of the Republic of Moldova

Commentary on some points of the Draft Opinion

by Pr. Jon Loughlin of March 7, 2002 (expert of the Congress of Local and Regional Authorities of the Council of Europe)

As mentioned in the State Chancellery’s message of 1 April, 2002, no.1311-129 both Laws (the Law of the Republic of Moldova 764-XV of 27 December 2001 on administrative-territorial organization of the Republic of Moldova and the Law of the Republic of Moldova 781-XV of 27 December 2001 on completing and amending the Law 186-XIV of 6 November 1998 on local public administration), which have been commented on by Pr. Jon Loughlin in his Draft Opinion of March 7, 2002 (henceforth the Draft Opinion) have been subject to assessment of their constitutionality by the Constitutional Court of the Republic of Moldova.

In this Commentary we will thus refer only to those points of the Draft Opinion that have not been considered by the Constitutional Court in its Decisions no.12 of 5 March and no.13 of 14 March 2002.

Law on administrative-territorial organization of the Republic of Moldova no.764-XV of 27 December 2001

In compliance with paragraph (4) of Art.26 of the Law of the Republic of Moldova 317-XIII of 13 December 1994 on the Constitutional Court, the Court’s acts cannot be subject to any attack, they are final and come into force on the date of their adoption.

In line with the idea of the provision cited above, as well as the constitutional stipulations on the Constitutional Court (Art.134 [3], Art.135 [1] (a), Art.140 of the Constitution of the Republic of Moldova) we can conclude that any comments on a law that the Constitutional Court recognized as being constitutional are groundless.

Thus the aspects revealed in the Draft Opinion concerning Law 764-XV of 27 December 2001 are left with no comment.

Law 781-XV of 27 December 2001 on completing and amending Law 186-XIV of 6 November 1998 on local public administration

The key changes here are: the mode of election of the mayor, previously directly elected by the people, now elected from within the council (Art.1); the legal position of the mayor and deputy mayors, who become state functionaries and whose activities are regulated by the Law on Public Service (Art.33[3]); the means by which a council may be suspended by Parliament, which may now occur, under certain conditions, on a proposal by the mayor, the president of the district, or the Government (Art. 30 [2]).

The mode of election of the mayor by the local council is already acknowledged as unconstitutional and the necessary amendments will be made to the Law on Local Public Administration and Election Code.

The juridical status of the mayor and deputy mayors is regulated by the Law on the status of the locally elected no.768-XIV of 2 February 2000. At the same time, ensuring the status of state functionaries to mayor and deputy mayor in compliance with Law on Public Service no. 443-XIII of 4 May 1995, caused some discrepancies. On the one hand the mayor and deputy mayor are locally elected, on the other they are public functionaries. In our opinion, this problem requires the introduction of amendments with a view to harmonizing the provisions of Law no.768-XIV of 2 February 2000 and those of Law no. 443-XIII of 4 May 1995.

“This …. is compounded by the suppression of the terms “decentralises” and “deconcentres” from the phrase “services publiques” in the Law. Art. 109 [1] of the Moldovan Constitution, states that “Public Administration in the administrative/territorial units is based on the principles of local autonomy, of the decentralization of public services …”, and [2] states that “The concept of autonomy encompasses both the organization and functioning of local public administration, as well as the management of the communities represented by that administration”. Taken together, the amendments to the Law seem to lead in the opposite direction of such decentralization and local autonomy.

It is worth mentioning that the purpose of these amendments to the Law on Local Public Administration, including the elimination of words “decentralises” and “deconcentres”, is to significantly improve the mechanisms of legal regulation of the public administration reform, ensure the consolidation of the vertical executive power, eliminate the administrative chaos, enforce the discipline and monitor the compliance to the law of the acts issued by the local public authorities.

A change also occurs in Art. 11 of the 2001 Law where the reference to the “droit a instituer des impots et taxes locales” of the 1998 version is omitted. Art. 9 [3] of the Charter states that “Part at least of the financial resources shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate”. The original version of Art.11 in the 1998 Law was clearly in accordance with this principle and it is regrettable that the reference to this right should be omitted from the 2001 version. Art. 18 [2] (f) of the 1998 Law, dealing with the powers of the local council, also makes reference to local taxation and states simply that one of these powers is “ etablir les impots et les taxes locales, dans les conditions de la loi”. The 2001 Law Art. 18 [2] (i) changes this to read: “decide la mise en application et la modification, dans les limites de ses competences, des quotas, du mode et des delais de paiement des taxes locales, ainsi que l’octroi des facilites au cours de l’annee fiscale, effectue les modifications respectives dans le budget local”. It is less clear in this rather convoluted sentence than in the 1998 Law that it is the local council which has the right to fix local taxes and charges or whether these are part of the central budget.

As it has been previously mentioned in this Commentary, in conformity with Art. 7 of the Fiscal Code of the Republic of Moldova, Art. 1 [2] of the Law on Local Taxes no. 186-XIII of 19 July 1994 and Art. 7 [2] of the Law on Fiscal System Basis no. 1198-XII of 17 November 1992, the local taxes are applied by the local public administration authorities (town, municipal and village (comune) councils) in the limits of their competences and in compliance with the Law on Local Taxes. The maximal amount of local taxes is approved by the Parliament.

Art. 1, paragraph 1of the Law no. 186-XIII of 17 November 1992 also stipulates all the local taxes (the collocation “local taxes” has been removed from the fiscal legislation) that are applicable in the Republic of Moldova.

From what has been stated above we can conclude that the provisions of Art. 18 [2] (i) of the Law on Local Public Administration is in perfect line with the whole fiscal legislation in force in the Republic of Moldova.

Professor de Bruycker, in his Opinion on the 1998, remarked that there was some overlapping of powers between the lower and intermidiary levels of government although in second Opinion, he noted an improvement in the amended version of this Law. The 2001 Law is a serious regression in this regard with an even greater confusion of powers between the two levels than was the case in the 1998 Law. This constitutes a violation of Art. 4 [4] of the Charter, which states that “Powers given to local authorities shall normally be full and exclusive. They may not be undermined by another, central or regional authority except as provided for by the law”. The following are some examples of this confusion of powers between the two levels.

In this context, the Draft Opinion invokes the following provisions of Art. 13 of the Law on Local Public Administration: [1] (a), [2] (a); [1] (b), [2] (b), [1] (h), [2] (j).

We acknowledge the fact that when introducing the amendments to the Law on Local Public Administration in its 2001 version there were some overlaps and uncertainties regarding the delimitation of competences of local public administration authorities of the first level (villages, comunes, towns and municipalities) from those of the second level (raions, municipality of Chişinău and the autonomous territorial unit of a special status).

At present we have initiated amendments concerning a more clear delimitation of competences of local public administration authorities, provided for in Art. 13 of the Law on Local Public Administration, Thus, the Government of the Republic of Moldova approved Decision no. 379 of 29 March 2002 “Concerning the approval of the Notice on the Draft Law to amend the Law on Local Public Administration no. 186-XIV of 6 November 1998”. This Draft Law foresees the delimitation of competences of local public administration authorities of the first and second levels of educational institutions (Art.13 of the Law on Local Public Administration). This delimitation will harmonize the budgetary relationship between the territorial-administrative units of the first and second levels while financing the educational institutions in compliance with the Law on Local Public Finances.

It is supposed that necessary amendments will be also introduced in other paragraphs of Art. 13 of the Law on Local Public Administration, which will enable us to avoid duplication and overlapping in competences of local public administration authorities.

The “president of the executive committee of the district council” (henceforth “district president”) has a status similar to that of the mayor, in that he is elected by the council (Art.1) and its representative (Art. 66 [2]) but is also a public functionary (Art. 66 [4]). It is also worrying that he replaces the prefect as the “representant du Gouvernement sur le territoire” (Art. 66 [8]). It is unclear in the new legislation what will be the future role of the perfect. There is thus the same ambiguity with regard to the autonomy of this level of the government as exists at the local level and with regard to the position of the mayor. Taking into account the same principles of vertical hierarchy and the integration of representative and executive powers, it must be concluded that the ambiguity is resolved in the direction of increased centralisation rather than autonomy.

Based on the Decision of the Constitutional Court no. 13 of 14 March 2002 neither the president of the executive committee of the raion council nor the mayor will be elected as counselors, and thus will not be appointed counselors.

It is presumed that the representative of the Government - prefect’s institution will be liquidated, still some of his duties will be taken over by the president of the executive committee of the raion council. At the same time, taking into account the fact that the president of the executive committee of the raion council is no longer the local representative of the Government (the relevant provision of Art. 68 [8] of the Law on Local Public Administration is recognized as unconstitutional), we do not exclude the possibility to return to the prefect’s institution.

In our opinion and in view of the Decision of the Constitutional Court no. 13 of 14 March 2002 the vertical hierarchy of and the interaction of representative and executive powers will not affect the principles of local autonomy provided for in the European Charter of Local Self-Government and the Constitution of the Republic of Moldova.

There is the same lack of clarity with regard to the tax-raising powers of the district council an attribution which was contained in 1998, Art. 59 n but which has disappeared from 2001, Art. 59. Chapter X of the 1998 Law dealt with the “Administration of Public Finances” and Art. 92 [1] within this chapter explicitly states that at least part of the revenues of the local and regional authorities would come from local taxes fixed by them. I assume that this Chapter will remain in the 2001. Would the Moldovan authorities confirm that this will be the case?

It is worth mentioning that, Chapter X “Administration of Public Finances” of the Law on Local Public Administration has been amended and its new version is included in Law no. 1101-XIV of 30 June 2000, owing the fact that these provisions constitute the objective of settling the Law on Local Public Finances, Law on Local Taxes, Law on Fiscal System Basis and other financial regulations.

As it was mentioned above in this Commentary, in conformity with Art.7 of the Fiscal Code of the Republic of Moldova, Art.1 [2] of the Law on Local Taxes no.186-XIII of 19 July 1994 and Art.7 [2] of the Law on Fiscal System Basis no. 1198-XII of 17 November 1992, local taxes are applied by the local public administration authorities (village (comune), town and municipal councils) in the limits of their competences and in compliance with this Law. The maximal amount of local taxes is approved by the Parliament.

Similarly, the competence of the raion council with regard to “ collection of taxes ” is reiterated in (m) of Art.59 of the Law on Local Public Administration which reads:

“m) decides upon the application local taxes, change, in limits of their competences, of the quotas, mode and terms of payment of these taxes, as well as the provision of facilities; operates, throughout the fiscal year, the adequate changes to the raion budget.

We can conclude that the competences of the local public authorities with regard to the administration of local public finances have not been affected by the amendments to the Law on Local Public Administration by Law no. 781-XV of 28 December 2001.

The same changes outlined above with regard to the position of the secretary of the local council have been introduced with regard to the secretary of the district council and the critical remarks made above apply here as well.

As regards the status of the raion council secretary we state that in conformity with the Decision of the Constitutional Court no. 13 of 14 March 2002 (Art.63 [2] of the Law on Local Public Administration) they will not be elected from the raion counselors, Thus, the raion council secretary will further be a public functionary whose status is regulated by the Law on Public Service.

(NOTE: In the letter from April 1, 2002, of the State Chancellery to the Ministry of Foreign Affairs it is mentioned that both Laws ( the Law of the Republic of Moldova 764-XV of 27 December 2001 on administrative-territorial organization of the Republic of Moldova and the Law of the Republic of Moldova 781-XV of 27 December 2001 on completing and amending the Law 186-XIV of 6 November 1998 on local public administration), which have been commented by Prof. John Loughlin in his Draft Opinion of March 7, 2002 have been subject to assessment of their constitutionality by the Constitutional Court of the Republic of Moldova. It is also mentioned that the Constitutional Court decisions contain, in its finding part, a respective reasoning. Following the constitutional provisions concerning the Constitutional Court (art. 134/3, art. 135/1/a, art. 140 of the Constitution of the Republic of Moldova), it is concluded that any commentary on matters that the Constitutional Court passed on is useless. The texts of the two decisions of the Constitutional Court were attached. The MFA provided the CPLRE Secretariat with the English version of both decisions.)

4 The programme of meetings held during this first visit is set out in Appendix 4.

5 The establishment of these regions was strongly advocated by the Congress in Recommendation 84 (2000) and, more generally, by the international community working in Chisinau.

6 In this connection, Mr Iovv, Chair of the parliamentary committee that drafted the reform in question, expressly mentioned the need to re-establish a vertical hierarchy in the public administration of Moldova.

7 The programme of meetings held during this second visit is set out in Appendix 5.

8 Article 4.6 of the Charter stipulates that: “Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way, in the planning and decision-making processes for all matters which concern them directly”. Article 5 of the Charter states that “Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute”.

9 On 5 February 2002 the Moldovan parliament decided that these elections should be held on 7 April 2002.

10 Article 7.1 of the Charter stipulates that “The conditions of office of local elected representatives shall provide for free exercise of their functions”.

12 The Congress secretariat transmitted this text to the Moldovan authorities on 13 March 2002.

13 The court also found unconstitutional a number of amendments to the Electoral Code, which had been introduced under Law No. 796-XV of 25 January 2002 in order to take account of the provisions concerned by its judgment on Law No. 781-XV.

14 In this respect, the court held that, while representing executive authorities, mayors must continue to be elected directly by the people, not members of the municipal council.

15 It is surprising that the court did not raise this ground of unconstitutionality in relation to mayors, whose status under the law in question places them in the same position as presidents of district executive committees.

16 It should be pointed out here that the Constitution refers solely to local authorities (villages, towns, municipalities and districts), not to regional authorities.

17 Article 4.3 of the Charter establishes the subsidiarity principle: "Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy".

18 According to Mr Iovv, the relevant parliamentary committee has already begun to draft proposals for new legislation.

19 The Bashkan is also automatically a member of the Moldovan government.

25 Debated and approved by the Chamber of Regions on 23 May 2000 and adopted by the Standing Committee on 25 May 2000 (see Doc. CPR (7) 4, draft Recommendation, presented by Mr N. Radu, Rapporteur).

26 Debated and approved by the Chamber of Regions on 23 May 2000 and adopted by the Standing Committee on 25 May 2000 (see doc CPR (7) 4, draft Resolution, presented by Mr N. RADU, Rapporteur).

27 Letter of the President of the Commission on changes to the Constitution of Moldova, Mr. V. Misin (letter dd/c-6 N° 550 of 7 December 2001).

28 The material level is the fact that the special organic law establishes the territory, institutions, symbols, official languages and powers of the autonomy and the formal one is the specific procedure for adoption and possible modification of special laws.

29 The decision of the Constitutional court N° 24 of 6.05.1999 “On the constitutionality of Section 20.2 of the Law on the Special status of Gagauzia/Gagauz-Yeri, N°344-XIII of 23 December 1994”.

30 Article 2 of the Constitution of Spain and Article 6 of the Constitution of Portugal.

31 Paragraph 1 would read: “ the territorial autonomies have legislative, executive and judicial bodies according to the law”.

32 The examples of such judicial control exist in several countries that have authonomies, for example, Article 153 of the Constitution of Spain and the constitutional reform in Italy in 2001 with regard of Article 127 of the Constitution of Italy.